James v. Astrue

Filing 28

MEMORANDUM AND ORDER regarding MOTION to Substitute Party 27 . Plaintiff's counsel shall have 10 days to supplement the record with sufficient information for the court to conclude that Paris Lee James is the proper party to proceed with plaintiff's disability benefits claims. Ordered by Judge Richard G. Kopf. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DANIEL RAY JAMES,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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4:10CV3141

MEMORANDUM
AND ORDER

This matter is before the court on plaintiff Daniel Ray James’ motion to substitute
party. (Filing 27.) For the reasons discussed below, plaintiff’s counsel shall have 10
days to supplement the record with sufficient information for the court to conclude that
Paris Lee James is the proper party to pursue plaintiff’s disability benefits claims.
On March 21, 2011, plaintiff’s counsel filed a motion to substitute party. (Filing
27.) In this motion, plaintiff’s counsel seeks to substitute Paris Lee James, plaintiff’s
surviving spouse, as the plaintiff in this matter. (Id.) In support of this motion,
Plaintiff’s counsel has attached a death certificate confirming that plaintiff died on March
10, 2011. (Id.)
Federal Rule of Civil Procedure 25 provides that:
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.

Fed. R. Civ. Pro. 25(a)(1). Plaintiff’s disability insurance benefits claims survive his
death. See, e.g., Fowler v. Astrue, No. 8:09-CV-1368-T-27MAP, 2010 WL 454765

(M.D. Fla. Feb. 9, 2010) (concluding that plaintiff’s disability insurance benefit claims
survived his death). However, the question before the court is whether Paris Lee James
is the proper party to pursue plaintiff’s disability benefits claims.
The disbursement of any disability benefit payments due at the time of a
claimant’s death is governed by 42 U.S.C. § 404(d). Pursuant to § 404(d)(1), any
payment of an amount due would be made first to plaintiff’s surviving spouse who was
either living in the same household with plaintiff at the time of his death, or entitled to
a monthly benefit on the basis of the same earnings record as was plaintiff for the month
in which plaintiff died. See also 20 C.F.R. § 404.503(b)(1). Plaintiff’s counsel has
offered no evidence to show that Paris Lee James was married to plaintiff or that she
would be entitled to disbursement of any disability benefit payments pursuant to §
404(d).
Accordingly,
IT IS ORDERED that plaintiff’s counsel shall have 10 days to supplement the
record with sufficient information for the court to conclude that Paris Lee James is the
proper party to proceed with plaintiff’s disability benefits claims.
DATED this 10th day of May, 2011.
BY THE COURT:
Richard G. Kopf
United States District Judge
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