HARLEY v. WARREN et al
OPINION AND ORDER denying 117 Motion to Substitute a Party. Defendants are instructed to notify Plaintiff with the name of the executor or representative of Nurse Carver's estate, or, in the alternative, notice stating that such a representative could not be found. Signed by Magistrate Judge James B. Clark on 11/13/2023. (qa, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
COREY IZEIL HARLEY,
NJSP ADMINISTRATOR CHARLES E.
WARREN, et. al.,
Civil Action No. 13-7656 (ES)
OPINION & ORDER
CLARK, Magistrate Judge
This matter comes before the Court on a motion by pro se Plaintiff Corey Harley to
substitute a party pursuant to Federal Rule of Civil Procedure 25(a), due to the death of named
Defendant Lance Carver, RN (“Nurse Carver”). Dkt. No. 117. Defendants Carol Milroy, RN,
Carol Gallagher, APRN, and the now deceased Nurse Carver (collectively, “Medical
Defendants”) oppose the motion and argue that their motion for summary judgment should be
reinstated. Dkt. No. 120. In his reply brief, Plaintiff requests leave to file a supplemental pleading
and also opposes the Medical Defendants’ request to reinstate their motion for summary
judgment. Dkt. No. 125. The Court reviewed the parties’ submissions in support and in
opposition of Plaintiff’s motion to substitute and decides the motion without oral argument
pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons set forth below,
Plaintiff’s motion to substitute a party is DENIED and Plaintiff’s request to supplement the
complaint is DENIED. However, the Medical Defendants are to provide Plaintiff with the name
of the executor or representative of Nurse Carver’s estate, after which the Court will allow
Plaintiff 30 days to file a new and proper motion to substitute said representative. Finally,
Defendants’ motion for summary judgment shall be reinstated following the expiration of the 30
This action concerns pro se Plaintiff Corey Izeil Harley, an inmate at New Jersey State
Prison and Baystate State Prison at all times relevant to the allegations, who brought suit against
the Medical Defendants alleging deliberate indifference to his medical needs in violation of 42
U.S.C. § 1983 and the Eighth Amendment of the United States Constitution. Dkt. No. 120. On
December 11, 2019, the Court entered a Scheduling Order in this matter. Dkt. No. 51. On
November 18, 2020, counsel for Nurse Carver wrote to the court to advise that Mr. Carver had
passed away. Dkt. No. 74. Following the completion of discovery, the Medical Defendants moved
for summary judgment on February 25, 2022. Dkt. No. 98. As part of their arguments in support
of summary judgment, the Medical Defendants assert that Plaintiff failed to timely substitute a
proper party pursuant to Fed. R. Civ. P 25 despite receiving notice of Nurse Carver’s death. Dkt.
No. 98. In opposition, Plaintiff claims he never received notice of Carver’s death. See Dkt. No.
110 at ¶ 91.
On January 6, 2023, the Court entered an Order finding that because counsel served
Plaintiff with the suggestion of death letter via regular mail, the Court could not verify whether
Plaintiff actually received the letter. Dkt No. 116. The Court therefore stated that “[i]n an
abundance of caution,” it would provide Plaintiff with an additional copy of the suggestion of
death letter, “which shall constitute sufficient notice under Rule 25.” Id. The Court then allowed
Plaintiff 90 days after receiving the suggestion of death letter to either file a motion to substitute
a party for Nurse Carver in compliance with Rule 25(a)(1) and Rule 25(a)(3) or voluntarily
dismiss the claims against Nurse Carver. Id. On April 10, 2023, the Court received Plaintiff’s
instant motion to substitute a party for Nurse Carver. Dkt. No. 117.
The Medical Defendants argue that Plaintiff’s motion should be denied because Plaintiff
has failed to file a brief or certification as required by L. Civ. R. 7.1(d)(1) and because Plaintiff
has not named a substitute party. Dkt. No. 120. Rather, the motion seeks an order granting
substitution of Carver with a “fictitious ‘Jane or John Doe.’” Id. Consequently, the Medical
Defendants argue, Plaintiff has failed to satisfy the service requirements in accordance with Fed.
R. Civ. P. 4, as required by Fed. R. Civ. P. 25(a)(3), because an unnamed party cannot be served.
Id. In response, Plaintiff seeks to cure the defects of his motion to substitute for Nurse Carver by
filing a supplemental pleading in accordance with Rule 15(d), and he further opposes the
reinstatement of summary judgment. Dkt No. 125.
Motion to Substitute a Party
1. Legal Standard
Motions to substitute parties are governed by Federal Rule of Civil Procedure 25, which
provides, in relevant part:
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. P. 25(a)(1).
The service provision of the same rule, in turn, provides in pertinent part as follows: “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.” Fed. R. Civ. P. 25(a)(3).
A substitution under Rule 25 is analyzed by considering “whether (1) the motion is timely;
(2) the claims pled are extinguished; and (3) the person being substituted is a proper party.” Cuoco
v. Palisades Collection, LLC, No. CIV.A. 13-6592 JLL, 2014 WL 956229, at *3 (D.N.J. Mar. 11,
2014) (quoting Veliz v. Cintas Corp., No. 03–1180, 2008 WL 2811171, at *1 (N.D.Cal. July 17,
Although the decision to substitute a party lies within a court’s discretion, see McKenna v.
Pac. Rail Serv., 32 F.3d 820, 836 (3d Cir. 1994), Rule 25 motions to substitute are generally
granted. In re Baycol Products Litig., 616 F.3d 778, 783 (8th Cir. 2010) (citing Rule 25’s advisory
committee note of 1963); see also Cuoco, 2014 WL 956229, at *3 (“While the trial court does
have the discretion to deny the motion, such a denial, without cause, is rare.”). The Third Circuit
embraces a liberal approach to Rule 25 and applies it with “flexibility” to permit substitution.
Boggs v. Dravo Corp., 532 F. 2d 897, 900 (3d Cir. 1976) (holding that the district court erred in
denying motion to substitute, reasoning that “there is no question but that a timely motion brought
by the Administratrix of a deceased party is within the terms of the Rule’s operation.”).
It is not currently disputed that the present motion is untimely, nor that the claims pled are
technically extinguished. Rather, the issue at hand stems from whether a proper party is being
substituted and whether or not service was proper, which raises a jurisdictional issue. 1
2. Proper Party
“Rule 25 only permits the substitution of ‘proper parties.’” Cuoco, 2014 WL 956229, at
*10 (cititng Graham v. Henderson, 224 F.R.D. 59, 63 (N.D.N.Y.2004); see also Fed. R. Civ. P.
25(a)(1); Giles v. Campbell, 698 F.3d 153, 155 (3d Cir. 2012); Sinito v. U.S. Dep't of Justice, 176
Although Plaintiff’s motion was deficient in that it only consisted of a notice of motion, the Court will use its
discretion to overlook the procedural deficiencies in order to decide this issue on the merits, with instructions for
Plaintiff to follow all Federal and local civil rules in the future. See Ameriprise Fin. Servs. v. Koenig, 2012 WL 379940,
*8 n.9 (D.N.J. Feb. 6, 2012) (stating the Court “in its discretion will overlook the procedural irregularities in deciding
the merits of this case); Naderi v. Concentra Health Servs., Inc., No. CV2118958JXNAME, 2023 WL 4896773, at *2
(D.N.J. Aug. 1, 2023).
F.3d 512, 516 (D.C. Cir. 1999) (“It is axiomatic that Rule 25 limits properly substituted parties to
those individuals who can adequately represent the interests of the deceased party.”). The Eighth
Circuit Court of Appeals has explained that a proper party in relation to a decedent’s estate can be
either “(1) the primary beneficiary of an already distributed estate ... (2) named in a will as the
executor of the decedent's estate, even if the will is not probated ... or (3) the primary beneficiary
of an unprobated intestate estate which need not be probated.” Baycol, 616 F.3d 784-85; see also
Ashley v. Illinois Cent. Gulf R. Co., 98 F.R.D. 722, 724 (S.D.Miss.1983) (citing Rende v. Kay, 415
F.2d 983 (D.C. Cir. 1969)) (explaining that “[u]nless the estate of a deceased party has been
distributed at the time of the making of the motion for substitution, the ‘proper’ party for
substitution would be either the executor or administrator of the estate of the deceased. ‘Successors'
would be the distributees of the decedent's estate if his estate had been closed.”). This is significant
because, “[a]n estate is not a person or a legal entity and cannot sue or be sued; an estate can only
act by and through a personal representative and therefore any action must be brought by or against
the executor or representative of the estate.” Revock v. Cowpet Bay W. Condo. Ass'n, No. 3:12CV-0024, 2020 WL 6471017, at *3 (D.V.I. Nov. 3, 2020); quoting LN Mgmt., LLC v. JPMorgan
Chase Bank, N.A., 957 F.3d 943, 956 (9th Cir. 2020) (holding that refusal to allow “the ‘estate,’
as a mere concept, to be joined as a party” was valid because “the request to add an unknown, and
perhaps nonexistent, executor [under Rule 25(a)] is clearly improper” where it has not been shown
“who the correct legal representative of [the decedent's] estate was or is.”).
Here, Plaintiff was given the opportunity to submit a motion to substitute parties after
claiming he was not served with notice of Nurse Carver’s death. Dkt. No. 116. In said Order, the
Court explicitly stated that the motion be “in compliance with Rule 25(a)(1) and Rule 25(a)(3).”
Id. Yet, in his motion to substitute, Plaintiff did not comply with Rules 25(a)(1) and 25(a)(3).
Specifically, Plaintiff failed to (1) name a proper party for the suit, and (2) serve said proper party.
Further, Plaintiff makes a bare assertion that the “Estate of Lance Carver” be named without
addressing who the proper representative of the estate is. As the pertinent authorities clearly
establish, a specific individual must be named and served in connection with a motion to substitute.
In seeking to substitute a John or Jane Doe or simply the Estate of Lance Carver rather than naming
a real party, Plaintiff’s motion makes it impossible to serve the substituted party pursuant to Rule
4. Therefore, a proper party to be substituted has not been identified and the motion to substitute
is facially deficient.
3. Proper Service and Jurisdiction
Further, the failure to serve a nonparty means the Court lacks personal jurisdiction over
said nonparty. When determining whether a party is proper, a court must also address “whether it
has personal jurisdiction over the party to be substituted.” Revock, 2020 WL 6471017, at *3; citing
Giles, 698 F.3d at 155. A motion to substitute must be served on nonparties as provided in Rule 4.
Fed. R. Civ. P. 25(a)(3). “Personal service under Rule 4 serves two purposes: notifying a defendant
of the commencement of an action against him and providing a ritual that marks the court's
assertion of jurisdiction over the lawsuit.” Oklahoma Radio Associates v. F.D.I.C., 969 F.2d 940,
943 (10th Cir.1992). “[W]here the parties to a lawsuit have failed to serve the motion to substitute
and the suggestion of death upon a nonparty—such as a successor or representative of the deceased
party's estate—a district court lacks personal jurisdiction over that nonparty.” Revock, 2020 WL
6471017, at *4; see Giles, 698 F.3d at 158 (explaining that the rationale for this rule is
“jurisdictionally rooted” in that the representative of the estate must be served under Rule 4 to
establish personal jurisdiction.); Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 570 (3d Cir.1996)
(holding that personal jurisdiction is not conferred if service under Rule 4 is not properly effected);
Ransom v. Brennan, 437 F.2d 513, 519 (5th Cir.1971) (same).
Here, the Court does not have jurisdiction over Nurse Carver’s estate since the estate was
never served through a personal representative. However, Plaintiff was never informed regarding
the proper executor or representative of Nurse Carver’s estate, and given his pro se and
incarcerated status such information is not readily accessible to Plaintiff. Courts have followed the
[W]hen it is a defendant who has died and it is his heirs or distributees who wish to
put an end to litigation which does not abate because of death, the various facets of
rule 25(a)(1) must be satisfied. The statement of the fact of death must be made by
a party or by the decedent's appointed representative…The statement must identify
the person who has been named as the representative of the decedent's estate.
Al-Jundi v. Estate of Rockefeller, 757 F. Supp. 206, 210 (W.D.N.Y. 1990); see also Bass v. Attardi,
868 F.2d 45, 50 n. 12 (3d Cir.1989) (quoting Rende, 415 F.2d at 986 (expressing concern that if
defendant's attorney could file the suggestion of death, it would effectively shift the burden to the
plaintiff “to locate the decedent's successor or representative in 90 days.”)); Cuoco, 2014 WL
956229, at *7 (“a defendant's attorney may not file a suggestion of death in a nefarious manner to
impose an unreasonable burden on a plaintiff.”).
The idea behind this rule is to prevent Rule 25 from being “used as a weapon by civil
defense attorneys to ‘place on plaintiff the burden, where no conventional representative was
appointed for the estate in probate court, of instituting machinery in order to produce some
representative of the estate ad litem.’” Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467, 470 (2d
Cir.1998) (quoting Rende, 415 F.2d at 986 (holding a suggestion of death filed by the attorney of
the deceased client that did not name his widow, who was the executrix of his will, was not
sufficient to trigger the ninety-day period for filing a motion to substitute under Rule 25(a)(1)).)
In Giles, the plaintiff, an incarcerated individual, sought to have a deceased defendant
substituted with his estate. 698 F.3d at 154. The District Court denied the motion to substitute. Id.
at 155. On appeal, the Third Circuit Court of Appeals held that because the estate was not served
pursuant to Rule 4, the suggestion of death was considered a nullity and the District Court lacked
jurisdiction over the estate. Id. at 159. Thus, the court vacated the denial of the plaintiff's motion
to substitute and remanded for the plaintiff to have an opportunity to refile his motion to substitute
and serve the proper representative of the estate. Id.
In this matter, the suggestion of death letter, [Dkt. No. 74], did not contain the name of the
executor or other representative of Nurse Carver’s estate. Being that courts have been mindful of
a deceased defendant’s counsel unfairly placing the burden of locating the representative of the
estate on a plaintiff, the Court will follow Giles and permit Plaintiff to properly refile his motion
to substitute. This is especially critical given Plaintiff’s pro se and incarcerated status.
Thus, Plaintiff’s current motion to substitute, [Dkt. No. 117], is DENIED. However, the
Court instructs the Medical Defendants to provide Plaintiff with notice as to the identity of the
executor or representative of Nurse Carver’s estate, or, in the alternative, notice that such
representative cannot be discovered. Within 30 days of such notice, Plaintiff shall have the
opportunity to file a motion to substitute with the proper party.
B. Request to File a Supplemental Pleading
In his reply letter, Plaintiff notes that circumstances arising from his transfer to Bayside
State Prison have limited his ability to fully address issues relating to the motion to substitute a
party and thus requests that he be given leave of thirty days to file a supplemental pleading under
Rule 15(d). Dkt. No 125. It is somewhat unclear precisely how Plaintiff seeks to supplement the
original complaint in order to cure deficiencies resulting from the death of Nurse Carver. However,
being that Plaintiff now will have an opportunity to submit a new motion to substitute, the request
for a supplemental pleading is DENIED.
CONCLUSION AND ORDER
The Court having considered the papers submitted pursuant to Fed. R. Civ. P. 78, and for
the reasons set forth above;
IT IS on this on this 13th day of November, 2023,
ORDERED that Plaintiff’s motion to substitute a party is DENIED; and it is further
ORDERED that Defendants are instructed to notify Plaintiff with the name of the executor
or representative of Nurse Carver’s estate, or, in the alternative, notice stating that such a
representative could not be found; and it is further
ORDERED that Plaintiff shall have 30 days from receipt of said notice to file a renewed
motion to substitute on the proper party; and it is further
ORDERED that Plaintiff’s request to file a supplemental pleading is DENIED; and it is
ORDERED that Defendants’ motion for summary judgment shall be reinstated
following the expiration of the 30-day period.
/s/ James B. Clark, III
JAMES B. CLARK, III
United States Magistrate Judge
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