Nebelsick v. Commissioner of Social Security

Filing 28

ORDER finding as moot 18 Motion to Dismiss. Because Judge Strand allowed Mr. Nebelsick to be added as a party in this case, the Defendants 18 Motion to Dismiss is moot. As such, it is denied. Signed by Senior Judge Donald E OBrien on 10/8/14. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
CALVIN NEBELSICK on behalf
of GILLIAN M. NEBELSICK,
Plaintiff,

No. 13-CV-4104-DEO

vs.

ORDER

CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
____________________
The above captioned case arises out of a Social Security
Complaint filed by Ms. Nebelsick on October 28, 2013.

Ms.

Nebelsick passed away on January 2, 2014.
On

July

18,

2014,

the

Dismiss, Docket No. 18.

Defendant

filed

a

Motion

to

In the Motion to Dismiss, the

Defendant argues that Ms. Nebelsick’s case should be dismissed
because she is deceased and her attorney failed to properly
substitute

a

new

party

to

the

case.

Specifically,

Defendant argues:
[b]ecause
plaintiff’s
successors
or
representative did not file a motion for
substitution of a party within 90 days
after making a statement to the Court
noting plaintiff’s death, defendant

the

respectfully requests that this Court enter
an order dismissing this case under Rule
25(a)(1).
Docket No. 18, Att. 1, p. 5.
42 U.S.C. § 404(d) states that if a claimant dies,
payment can be made to the decedent's next of kin if the next
of kin is properly substituted as a party under Fed. R. Civ.
P. 25(a)(1). Under that rule, Plaintiff's counsel should have
moved

to

substitute

Plaintiff’s
Defendant

counsel

filed

the

her
did

next
not

above

do

of

kin

so.

mentioned

by

July

However,
Motion

8,

2014.

after

to

the

Dismiss,

Plaintiff’s counsel filed a Resistence, Docket No. 20, and a
Motion to Substitute a New Party, Docket No. 22.
On August 27, 2014, Magistrate Strand considered whether
Plaintiff should be allowed to add a new party even though the
deadline had passed.

Judge Strand ruled that:

[i]n considering all of the relevant
circumstances, including the relatively
short delay, I find that it would be unjust
to penalize Mr. Nebelsick for plaintiff’s
counsel’s inaction. As such, I find that
plaintiff has shown excusable neglect such
that the untimely motion to substitute
party should be allowed. I further find,
based on the representations set forth in
plaintiff’s reply (Doc. No. 26 at ¶ 2),
that Mr. Nebelsick is a proper party in
interest.
See 42 U.S.C. § 404(d); 20
2

C.F.R. § 404.503(b). As such, he may be
substituted as the plaintiff in this case.
Docket No. 27, p. 3.

Based on the Magistrate’s ruling, Mr.

Nebelsick was added as a new party to the case.
Because Judge Strand allowed Mr. Nebelsick to be added as
a party in this case, the Defendant’s Motion to Dismiss,
Docket No. 18, is moot.

As such, it is denied.

IT IS SO ORDERED this 8th day of October, 2014.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

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