The Court has before it Plaintiffs' Motion to Substitute the Estate of Greg Luther as a named Plaintiff in this matter because of Mr. Luther's death. (Dkt. 348.) Plaintiffs filed the motion on August 16, 2012, and Defendants filed a response objecting to the motion on August 22, 2012. Trial in this matter commences Monday, August 27, 2012. Having reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and the record. Accordingly, in the interest of avoiding delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the motions will be decided on the record before the Court without oral argument. Dist. Idaho L. Rule 7.1(d).
According to the Second Amended Complaint, Mr. Luther suffered from a disability, and was a tenant in Community House who was unable to find other temporary housing, and was not offered relocation assistance, benefits, or replacement housing by Defendants when he was forced to vacate Community House. (Second Am. Compl. ¶21, Dkt. 166-1.) Mr. Luther's claims arise under the Fair Housing Act, 42 U.S.C. §§ 3601 et. seq. ("FHA"), and he alleges injury due to Defendants' alleged "discriminatory housing practices that otherwise make unavailable or deny dwellings because of disability/ handicap status," in violation of 42 U.S.C. § 3604(f)(3)B. (Id. ¶ 165.)
Plaintiffs bring their motion to substitute under Fed. R. Civ. P. 25(a), and argue that Mr. Luther's claims survive based upon Idaho State law, specifically Idaho Code § 5-327(2), because there is no provision in the FHA regarding survivorship of a decedent's claim. Idaho Code § 5-327(2) provides that "[a] cause of action for personal injury or property damage caused by the wrongful act or negligence of another shall not abate upon the death of the injured person from causes not related to the wrongful act or negligence." Plaintiffs assert that Mr. Luther's death was not caused by the City's actions, and therefore Idaho Code § 5-327(2) applies and his claim survives.
Plaintiffs argue also that damages should not be limited by applicable Idaho law, because the limitation of damages would be "inconsistent with the compensation and deterrence policies that Congress intended §1983 to serve." Plaintiffs therefore contend that under Idaho law Mr. Luther's claim under the FHA survived Mr. Luther's death, and the federal law on damages should be applied because the expressed purposes of the FHA to provide compensation, broad remedies, and to deter discrimination are served by not limiting damages under Idaho law.
Defendants object to the substitution of Mr. Luther's estate for three reasons. First, Defendants assert Plaintiffs have failed to comply with the requirements of Fed. R. Civ. P. 25, because there has been no showing that counsel is authorized to act on behalf of Mr. Luther's estate, and no probate action has been commenced. Second, Plaintiffs argue Mr. Luther's cause of action abated upon his death because Idaho Code § 5-327(2) is limited to a cause of action for personal injury or property damage, but Mr. Luther's claims do not encompass such damages. And finally, Defendants argue that even if Mr. Luther's claims do not abate, the limitation on damages should apply pursuant to Idaho law.
1. Mechanics of Substitution
Fed. R. Civ. P. 25 provides that "if a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative" within 90 days after service of a statement noting the death. Fed. R. Civ. P. 25(a)(1). "A motion to substitute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner." Fed. R. Civ. P. 25(a)(3).
The rule requires two affirmative steps to trigger the running of the 90 day period. First, a party must formally suggest the death of the party upon the record. Barlow v. Ground, 39 F.3d 231, 223 (9th Cir. 1994). Second, the suggesting party must serve other parties and nonparty successors or representatives of the deceased with a suggestion of death in the same manner as required for service of the motion to substitute. Fed. R. Civ. P. 25(a)(1); Barlow, 39 F.3d at 233. Thus, a party may be served the suggestion of death by service on his or her attorney, Fed. R. Civ. P. 5(b), while non-party successors or representatives of the deceased party must be served the suggestion of death in the manner provided by Rule 4 for the service of a summons. Barlow, 39 F.3d at 233. The rule therefore requires service upon Mr. Luther's successor or representative in the manner provided by Rule 4.
Plaintiffs have yet to fully comply with their obligation under Rule 25. On the record before the Court, it appears that Mr. Luther's successors or representatives have not been served, and therefore the 90-day period within which a substitution motion may be made or dismissal will be entered has not been triggered yet. Barlow, 39 F.3d at 233-
34. If Plaintiffs have attempted to identify Mr. Luther's successors or representatives, but have failed to ascertain any such persons, then Plaintiffs should submit an affidavit or declaration attesting to such efforts. At this time, the Court has received no indication from Plaintiffs whether Mr. Luther has any successors or representatives and whether they were served, or whether Plaintiffs have been unable to identify any successors or representatives. But, Mr. Luther's death does not automatically terminate the Court's jurisdiction over Mr. Luther's claims. See Barlow, 39 F.3d at 235 (order dismissing under Rule 25 was reversed and case was remanded for motion to substitute).
Both parties agree that 42 U.S.C. § 1988 governs, and the analysis set forth in Van Orden v. Caribou County, No. 4:10--CV--385--BLW, 2011 WL 841438 (D. Idaho Mar. 4, 2011), applies to determine whether Mr. Luther's claim under the FHA survives his death. Section 1988 establishes the following three step analysis: "First, the Court determines whether the issue before it is addressed by federal law. Absent a federal statute, the Court next examines whether the law of the forum state addresses the issue. Finally, the Court considers whether application of state law would conflict with the policies underlying the cause of action before the Court." Van Orden, 2011 WL 841438 *2 (internal citations omitted). See also Cusack v. Idaho Dept. of Corrections, No. 1:11-cv-00303-REB, 2012 WL 506008 (D. Idaho Feb. 15, 2012) (applying the analysis in Van Orden).
Plaintiffs concede the FHA does not contain a provision regarding the survivorship of a decedent's claim, and argue Idaho Code § 5-327(2) guides the analysis. Defendants argue Idaho Code § 5-327(2) does not apply. The full text of Idaho Code § 5-327(2) provides as follows:
A cause of action for personal injury or property damage caused by the wrongful act or negligence of another shall not abate upon the death of the injured person from causes not related to the wrongful act or negligence. Provided however, that the damages that may be recovered in such action ...