CASARETTI et al v. USA

Filing 183

UNREPORTED ORDER granting 178 Motion to Substitute Party. ; granting 180 Motion to Substitute Party. ; on 178 MOTION to Substitute Party Tanja Edwards for David Edwards filed by FEDERAL AIR MARSHALS 6500 TO 10000, J. CASARETTI, 180 MOTION to Substitute Party Kenneth Michael Marquis filed by FEDERAL AIR MARSHALS 6500 TO 10000, J. CASARETTI. Signed by Senior Judge Victor J. Wolski. (mvl) Service on parties made.

In the United States Court of Federal Claims
No. 15-294C
(Filed July 26, 2023)
NOT FOR PUBLICATION
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J. CASARETTI, et al.,
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Plaintiffs,
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v.
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THE UNITED STATES,
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Defendant.
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ORDER
Two statements noting deaths have been filed, informing the Court that
plaintiffs David Edwards and Kenneth Michael Marquis, respectively, are deceased.
ECF Nos. 177, 179. Pursuant to Rule 25(a)(1) of the Rules of the United States
Court of Federal Claims (RCFC), two motions to substitute a party have been filed,
one for each decedent. ECF Nos. 178, 180. This case seeks damages under the Fair
Labor Standards Act (FLSA), 29 U.S.C. § 201–16, and “decedents’ causes of action
under . . . the FLSA . . . survive to the representatives of their estates.” Acebal v.
United States, 60 Fed. Cl. 551, 557 (2004). The government did not file a paper
opposing either motion before the filing deadline, and that reason alone suffices for
the granting of the motions.
During the status conference held on July 24, 2023, defendant nevertheless
raised concerns about the timing of the two motions, noting that a motion to
substitute a party in place of Mr. Marquis had initially been filed in April of 2021,
see ECF No. 130, before being withdrawn two months later, see Order (June 29,
2021), ECF No. 138 at 2; and that Mr. Edwards had died prior to the class action
opt-in period. But Mr. Edwards had joined the lawsuit on August 7, 2015---ten
months before his death---when his written consent pursuant to 29 U.S.C. § 216(b)
was filed with Ninth Notice of Filing Consents, ECF No. 22 at 5; see also ECF No.
22-1 at 49 (written consent of Mr. Edwards).

As for the timeliness of the motions, under RCFC 25(a)(1), the ninety-day
period for filing a substitution motion is triggered upon service of a statement
noting death upon “a successor or representative of the deceased party.” RCFC
25(a)(3); see Christner v. Sec’y of Health and Hum. Servs., 145 Fed. Cl. 633, 635
(2019) (discussing earlier version of the rule and its history). The initial statement
noting deaths, including those of Messrs. Edwards and Marquis, was filed on
January 25, 2021, but was not served on successors or representatives. See ECF
No. 123. Moreover, service upon Tammy Marquis, Mr. Marquis’s successor in
interest, could not have been made at that time, as the order admitting the will of
Mr. Marquis would not issue until September 14, 2021. See ECF No. 180 at 2 & Ex.
B. The more recent statements noting the deaths of Messrs. Edwards and Marquis
were served upon successors and representatives on June 23, 2023, see ECF No. 177
at 2; ECF No. 179 at 2. The motions to substitute a party were filed that same day,
see ECF Nos. 178 & 180, and are thus timely under RCFC 25(a).
Moreover, both motions appear to contain the requisite documentation
identifying the proper parties for substitution. Accordingly, the motion to
substitute decedent David Edwards with Tanja Edwards, Personal Representative
of the Estate of David Edwards, ECF No. 178; and the motion to substitute decedent
Kenneth Michael Marquis with Tammy Marquis, Successor in Interest and
Distributee of the Estate of Kenneth Michael Marquis, ECF No. 180, are both
GRANTED.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Senior Judge

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