Gilberti v. Welling et al

Filing 19

ORDER denying without prejudice 13 Motion to Substitute Party. Signed by Judge James S. Moody, Jr on 11/6/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NANCY GILBERTI,
Plaintiff,
v.

Case No. 8:13-cv-821-T-30EAJ

NANCY WELLING and
DAVID WELLING,
Defendants.
________________________________/

ORDER
THIS CAUSE comes before the Court upon Joseph Gilberti’s Motion for
Substitution of Party (Dkt. #13) pursuant to Federal Rule of Civil Procedure 25(a)(1). The
Motion requests that the Court substitute the deceased Plaintiff with Joseph Gilberti, the
decedent’s surviving spouse.
When confronted with a motion to substitute a party, a court must consider whether
the motion is timely, whether the claim has been extinguished by death, and whether the
movant proposes a proper party for substitution. Natale v. Country Ford Ltd., 287 F.R.D.
135, 136 (E.D.N.Y. 2012). The timeliness of the motion and survivability of the claim in
this case are not at issue so the Court turns its attention to whether Joseph Gilberti is a
proper party. Proper parties for substitution include “either (1) a successor of the deceased
party—a distributee of an estate if the estate of the deceased has been distributed at the
time the motion for substitution has been made, or (2) a representative of the deceased

party—a person lawfully designated by state authority to represent the deceased's estate.”
Id. at 137.
The Movant in this case makes only a conclusory statement suggesting he is a proper
party. The Court recognizes the Movant is the spouse of the deceased Plaintiff and may
eventually become a proper party, but the Movant must prove this through appropriate
methods. Appointment as the personal representative of the deceased’s estate would make
the Movant a proper party. Metcalfe v. Lee, 952 So. 2d 624, 630 (Fla. 4th DCA 2007).
The Movant has not established that he is a proper party for substitution in this
action. Therefore, this Motion for Substitution of Party should be denied.
It is therefore ORDERED AND ADJUDGED that the Motion to Substitute Party
(Dkt. #13) is denied without prejudice.
DONE AND ORDERED in Tampa, Florida, on this 6th day of November, 2013.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2013\13-cv-821 Order.docx