UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

EDWIN SUM, Plaintiff,

v. Case No: 8:21-cv-377-KKM-AAS METROPOLITAN CASUALTY INSURANCE COMPANY, Defendant.

ORDER Federal Rule of Civil Procedure 25(a) requires a court to dismiss an action if the plaintiff dies, the claim survives the plaintiffs death, and ninety days pass after service of a “statement noting the death.” Rule 25(a)(3) requires that “[a] statement noting death must be served” “on the parties as provided in Rule 5 and on nonparties as provided in Rule 4.” Fed. R. Civ. Proc. 25(a)(3). Rule 25 does not specify which nonparties must be served, but

courts generally agree that the representatives of the deceased plaintiffs estate or successors

in interest to the claim must be served, as they are the nonparties who could prosecute the

surviving claim. See Diamond Resorts Int'l, Inc. v. US Consumer Att’ys, P.A., No. 18- 80311-CIV,

, at *3 (S.D. Fla. Oct. 13, 2020) (Reinhart, M_J.); Williams v. Scott, No. 07-22617-ClV,

, at *3 (S.D. Fla. Feb. 8, 2011)

(Ungaro, J.); see also Powell v. United States,

, 705 (11th Cir. 2020) (per curiam) (noting that the there was no duty to serve any estate or successor where, “by every indication|, the party] had no representatives of his estate or successor”). The Court previously concluded that the only nonparty who must be served under Rule 25 to start the ninety-day clock was Jinghua Liu, Plaintiff Edwin Sum’s widow and the only identified successor to Sum. (Doc. 44.) Metropolitan Casualty Insurance Company served Liu with a notice of Sum’s death on February 14, 2022. (Doc. 48; Doc. 49.) Ninety days have passed since Metropolitan served Liu and Metropolitan now moves

to dismiss this case with prejudice. (Doc. 50.) Because ninety days have passed since Metropolitan served Liu and no party has moved to substitute as plaintiff for Sum, the Court agrees that the case must be dismissed. See Fed. R. Civ. P. 25(a)(1). The Court does not agree, however, that dismissal should be with prejudice. Ordinarily, a dismissal is with prejudice only when it is “on the merits.” Citibank, N.A. v. Data Lease Fin. Corp.,

(11th Cir. 1990). A dismissal with prejudice might also be warranted as a sanction for litigation misconduct. See Betty K Agencies, Ltd. v. M/V MONADA,

(11th Cir. 2005). This dismissal is not “on the merits” and there is no alleged litigation misconduct by Sum that warrants a dismissal with prejudice. Moreover, Metropolitan offers no argument for why dismissal should be with prejudice. Accordingly, the Court GRANTS-IN-PART

Metropolitan’s Motion to Dismiss, (Doc. 50), and DISMISSES this case WITHOUT PREJUDICE. The Clerk is directed to ENTER JUDGMENT in Defendant's favor, to TERMINATE any other pending motions and deadlines, and to CLOSE this case. ORDERED in Tampa, Florida, on May 17, 2022.

— hati Mizelle United States District Judge