DeClue v. Transportation Insurance Company

Filing 150

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of third party defendant A.I.G. Agency, Inc. to vacate or amend (Doc. 135) is denied. Signed by Magistrate Judge David D. Noce on 2/19/2013. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SHERI CHIPMAN,
Plaintiff,
v.
TRANSPORTATION INSURANCE
COMPANY,
Defendant and
Third Party Plaintiff,
v.
A.I.G. AGENCY, INC., d/b/a
ASSOCIATED INSURANCE GROUP,
Third Party Defendant.

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No. 4:11 CV 117 DDN

MEMORANDUM AND ORDER
This action is before the court on the motion of third party defendant A.I.G. Agency,
Inc. (A.I.G.) to vacate or amend the court’s order that allowed the substitution of Sheri
Chipman as plaintiff in place of her late husband, Paul DeClue. (Doc. 135.)
A.I.G. argues that Sheri Chipman failed to meet the 90-day deadline set forth in
Fed. R. Civ. P. 25(a)(1). On October 15, 2012, A.I.G. filed a suggestion of death of Paul
DeClue. (Doc. 105.) On January 18, 2013, Sheri Chipman moved to substitute herself as
plaintiff in place of Paul Declue, which the court granted. (Docs. 122, 127.) Fed. R. Civ. P.
25(a)(1) states:
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.
Under Fed. R. Civ. P. 6(a)(1), the time period for Chipman to file her motion ended on
Monday, January 14, 2013, because the ninetieth day was Sunday, January 13. See Fed.
R. Civ. P. 6(a)(1)(C).

However, A.I.G. served the suggestion of death on plaintiff’s counsel

by mail, as authorized by Rule 5(b)(2)(C).

(Doc. 105 at 2.)

Such service added an

additional three days to the time period within which the motion for substitution needed to
be filed. See Fed. R. Civ. P. 6(d). So, three days past January 14 was January 17. The
motion for substitution, then, was filed one day late.

A.I.G. argues that the court ought not extend the time for the motion to substitute
to be filed, because Chipman failed to show that excusable neglect caused the delay. Fed.
R. Civ. P. (6)(b)(1)(B). The court disagrees.
Regarding excusable neglect, “the determination is at bottom an equitable one,
taking account of all relevant circumstances surrounding the party's omission.” Pioneer
Inv. Services Co. v. Brunswick Associates Ltd. P'ship, 507 U.S. 380, 395 (1993). “These
include . . . the danger of prejudice to the [other parties], 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.”
Id.
Neither Transportation Insurance Company nor A.I.G. argues it would suffer
substantial prejudice or that these judicial proceedings would be negatively affected by the
court extending the time period for filing to January 18.
To explain her delay, plaintiff offers the unexpected nature of her husband Paul
DeClue’s death and the financial pressures that resulted in the sale of her home. (Doc.
125 at 3-4.) According to plaintiff, these factors resulted in the delay of the opening of
DeClue’s probate estate. (Id. at 4.) Further, plaintiff filed the motion to substitute on the
day of the probate estate opening.

(Id. at 1.)

The court finds that excusable neglect

caused plaintiff’s delay. See In re Prempro Products Liab. Litig., 2009 WL 358264, *1 (E.D.
Ark. 2009) (finding excusable neglect for a two-year delay relying solely on lack of
prejudice, no impact on the proceedings, and good faith).

The court retrospectively

extends the period of time to January 18, 2013 for Sheri Chipman to file her motion for
substitution as plaintiff in this action. A.I.G.’s motion to vacate is denied.
A.I.G. also requests that, if the court denies its motion to vacate, the court amend
the order under 28 U.S.C. § 1292 and certify the order for immediate appeal to the United
States Court of Appeals for the Eighth Circuit. For certification under § 1292, “the district
court must be of the opinion that (1) the order involves a controlling question of law; (2)
there is substantial ground for difference of opinion; and (3) certification will materially
advance the ultimate termination of the litigation.” White v. Nix, 43 F.3d 374, 377 (8th
Cir. 1994).
“A legal question of the type referred to in § 1292(b) contrasts with a matter for the
discretion of the trial court.” Id. The order at issue involves excusable neglect for missing
a filing deadline by one day on a matter not directly related to the parties’ pleaded
allegations, and determination of excusable neglect is a matter of discretion. Kaubisch v.
Weber, 408 F.3d 540, 542 (8th Cir. 2005).
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Accordingly, A.I.G.’s request for certification of the order to the court of appeals
under 28 U.S.C. § 1292 is denied.
III. CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED that the motion of third party defendant A.I.G. Agency,
Inc. to vacate or amend (Doc. 135) is denied.

/S/ David D. Noce______________
UNITED STATES MAGISTRATE JUDGE
Signed on February 19, 2013.

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