Smith et al v. The Village Club, Inc. et al

Filing 38

ORDER denying without prejudice 33 Motion to Substitute Party.. Signed by Judge Charlene Edwards Honeywell on 11/12/2015. (ABC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHARLES SMITH and DOROTHY
CAPEZZA,
Plaintiffs,
v.

Case No: 8:15-cv-579-T-36AEP

THE VILLAGE CLUB, INC. and JIM
RUBERT,
Defendants.
___________________________________/
ORDER
This matter comes before the Court upon Plaintiff Charles Smith’s Motion to Substitute
Party (Doc. 33), and Defendants’ response thereto (Doc. 34). In the motion, Plaintiff Charles
Smith’s daughter seeks to be substituted for him as a plaintiff in this action, alleging that Smith’s
“dementia has exacerbated to the point of no longer being legally competent to fully participate as
a party in this cause of action.” Doc. 33 at p. 1. The Court, having considered the motion and being
fully advised in the premises, will deny without prejudice Plaintiff's Motion to Substitute Party.
“Under Rule 25(b) of the Federal Rules of Civil Procedure, ‘[i]f a party becomes
incompetent, the court may, on motion, permit the action to be continued by or against the party’s
representative.’ Fed.R.Civ.P. 25(b). The decision to allow substitution of parties during pending
litigation is within the trial court’s discretion.” Bah v. Washington Metropolitan Area Transit
Authority, Civil Action No.: CBD–14–2803, 2015 WL 6460082, 2 (S.D. M.D. Oct. 23, 2015)
(citing Nat'l Indep. Theatre Exhibitors, Inc. v. Buena Vista Distribution Co., 748 F.2d 602, 610
(11th Cir.1984)). Here, there is no evidence to show that Smith is incompetent. His daughter,
Patricia Bone, has only submitted a durable power of attorney form, naming Suzanne Smith as

attorney-in-fact and Patricia Bone as successor-attorney-in-fact, as well as a death certificate for
Suzanne Smith. The durable power of attorney provides, inter alia:
This Power of Attorney shall only be effective upon my disability
or incapacitation, whereby I am incapable of acting on my own
behalf. I direct the named agent, prior to assuming his/her authority
under this document, to secure two (2) written certifications from
physicians, duly licensed to practice medicine in the State of
Michigan or in such state as I shall then be present, certifying that
each has examined me and determined that I am incapable of acting
on my own behalf. Such incapacity shall be deemed to have ceased
upon delivery of similar certifications to my agent that the
incapacity has passed and that I am once again able to act on my
own behalf. Any third party dealing with my agent may rely upon a
copy of any such certifications as to my incapacitation in dealing
with my agent and shall not be required to make an independent
determination of disability. A third party dealing with my agent may
also rely on a statement by my agent that the disability has not
ceased. The validity and effectiveness of this Power of Attorney
shall not be affected by my subsequent disability or incompetence
or by lapse of time.
Doc. 33-1 at p. 1.
However, there is no medical evidence of Smith’s disability or incompetence in the record.
Without such evidence, Plaintiff’s motion must be denied. See Bah, 2015 WL 6460082 at 2
(denying plaintiff’s motion to substitute where there was no medical evidence of plaintiff’s mental
or physical capacity or that plaintiff had been declared legally incompetent in a court proceeding,
and the only evidence was plaintiff’s argument that he became “seriously ill.”). See also Turner v.
Neptune Towing & Recovery, Inc., No. 8:09–CV–1071–T–27AEP, 2011 WL 2981786, 2 (M.D.
Fla. July 22, 2011) (mooted motion to substitute under F.R.C.P. 25(b) would have been denied due
in part to no showing of incompetence where no medical evidence regarding her mental and
physical capacities was presented and it was not shown that she had never been adjudicated
incompetent); Pass v. Government Employees Insurance Company, No. 3:13–CV–00016–SA–
SAA, 2014 WL 5511082, *2 (N.D. Miss. Oct. 31, 2014) (denying substitution pursuant to a
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durable power of attorney where there was no evidence that plaintiff had been declared legally
incompetent in a court proceeding). Accordingly, it is hereby
ORDERED that Plaintiff's Motion to Substitute Party (Doc. 33) is DENIED without
prejudice.
DONE AND ORDERED in Tampa, Florida on November 12, 2015.

Copies to:
Counsel of Record and Unrepresented Parties, if any

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