Tutlewski et al v. Palleson et al

Filing 46

OPINION AND ORDER GRANTING 44 MOTION for Extension of Time to Amend Complaint Naming Sharon Tutlewski Independent Administrator of the Estate of William Tutlewski filed by Sharon Tutlewski and ORDERING that the time for Plaintiffs to fi le a motion to substitute is extended to 7/14/2021. Because the issue of substitution may not be resolved, the Court VACATES the Settlement Conference currently set for 7/7/2021, and SETS this matter for a Telephonic Status Conference for 7/7/2021, at 9:30 a.m. (Central Time) to reschedule the settlement conference. The parties are instructed to dial 877-873-8017 and enter access code 5155509# when prompted. Signed by Magistrate Judge John E Martin on 6/30/2021. (mrm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
WILLIAM TUTLEWSKI and
SHARON TUTLEWSKI,
Plaintiffs,
v.
ERICK PALLESON and
LARRY POWELL,
Defendants.

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CAUSE NO.: 2:18-CV-194-JTM-JEM

OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion for Extension of Time in Which to File
Amended Complaint Naming Sharon Tutlewski Independent Administratix of the Estate of William
Tutlewski [DE 44], filed on June 29, 2021. Plaintiffs request a 14-day extension within which to
substitute an administratix for Plaintiff William Tutlewski following his death.
Plaintiff William Tutlewski died on March 8, 2020, and on March 24, 2021, Plaintiffs
informed the Court of his death. In the instant Motion, counsel for Plaintiffs represents that an
attorney is the process of handling the probate work to have an independent administratix appointed,
and that once that is completed he will be able to file an amended complaint to substitute the
administrator of the estate.
Federal Rule of Civil Procedure 25(a) addresses substitution of a party upon death. It
provides:
(1) Substitution if the Claim Is Not Extinguished. 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. If the motion is not
made within 90 days after service of a statement noting the death, the
action by or against the decedent must be dismissed.
...
(3) Service. 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. Service may be made in any judicial district.
Fed. R. Civ. P. 25(a).
More than 90 days have passed since Plaintiffs notified the Court of William Tutlewski’s
death on March 24, 2021, and at a hearing on May 14, 2021, the Court set a deadline of June 22,
2021, for substitution of a new party. Counsel for Plaintiffs represents that he has been consumed
with other work and was unable to move for an extension earlier, but that Defendants will not be
prejudiced by a brief extension while the probate paperwork is completed.
Under Federal Rule of Civil Procedure 6, “[w]hen an act may or must be done within a
specified time, the court may, for good cause, extend the time: . . . (A) before the original time or
its extension expires; or (B) on motion made after the time has expired if the party failed to act
because of excusable neglect.” Fed. R. Civ. P. 6(b)(1). To determine whether the neglect was
excusable, the
Court must “tak[e] into consideration all relevant circumstances including the danger of prejudice
to the non-moving party, the length of the delay and its potential impact on judicial proceedings, the
reason for the delay, including whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.” Marquez v. Mineta, 424 F.3d 539, 541 (7th Cir. 2005)
(quotations and citations omitted); see also Cont’l Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir.
1993) (“While couched in mandatory terms, the Advisory Committee Notes to Rule 25 indicate that
the 90-day requirement may be extended by Federal Rule of Civil Procedure 6(b) . . . The history
of Rule 25(a) and Rule 6(b) makes it clear that the 90 day time period was not intended to act as a
bar to otherwise meritorious actions, and extensions of the period may be liberally granted.”)

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(quotation and quotation marks omitted).
Plaintiffs assert that there is not yet an administrator who can be substituted, and counsel for
Plaintiffs explains that his criminal caseload has prevented him from giving his full attention to this
matter. The delay in appointing an administrator who can be substituted in the case is not within the
reasonable control of the movant and there is good cause for extending the time period. See Atkins
v. City of Chicago, 547 F.3d 869, 872 (7th Cir. 2008) (“The decedent’s lawyer . . . for obvious
practical reasons [] is permitted to file a motion for an extension of time if there is no executor
because the decedent died without a will and an administrator of the estate has not yet been
named.”).The Court notes that Defendants have filed a motion to dismiss Plaintiff William
Tutlewski’s claims because of the time that has passed since his death, but finds that a further brief
delay will not cause prejudice.
Accordingly, in the interests of justice, the Court hereby GRANTS the Plaintiffs’ Motion
for Extension of Time in Which to File Amended Complaint Naming Sharon Tutlewski Independent
Administratix of the Estate of William Tutlewski [DE 44] and ORDERS that the time for Plaintiffs
to file a motion to substitute is extended to July 14, 2021. Because the issue of substitution may not
be resolved, the Court VACATES the settlement conference currently set for July 7, 2021, and
SETS this matter for a telephonic status conference for July 7, 2021, at 9:30 a.m. (Central Time)
to reschedule the settlement conference. The parties are instructed to dial 877-873-8017 and enter
access code 5155509# when prompted.
SO ORDERED this 30th day of June, 2021.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record
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