Bassy v. Faith Security Services, Inc. et al
ORDER granting 66 Motion for Extension of Time to File: See attached. Ordered by Chief Magistrate Judge Steven M. Gold on 1/17/2014. (Megdal, Deborah)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ANTHONY BASSY, individually and on behalf of
others similarly situated; and AHMED KOMOLAFE and :
OLOFEMI OYEWO, individually,
FAITH SECURITY SERVICES, INC. and
EMMANUEL ROSIJI, an individual,
--------------------------------------------------------------------Gold, S., U.S.M.J.:
12-Civ-2712 (PKC) (SMG)
Anthony Bassy is one of several plaintiffs who brought this action asserting claims
pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. By letter dated August 28,
2013, plaintiffs’ counsel advised the Court that Bassy had passed away and that his surviving
family members intended to pursue his claims. Docket Entry 59.
I held a conference on September 13, 2013. After the conference, I issued an order
directing plaintiff to file an amended complaint substituting a proper party for Bassy “[a]s soon
as practicable after the appointment of an executor.” My Order made explicit reference to
Federal Rule of Civil Procedure 25, which provides as follows:
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).
On January 23, 2014, plaintiff’s counsel submitted a letter motion explaining that
the proceedings in Surrogate’s Court had not been concluded and seeking additional time
to substitute a proper party for Bassy. Docket Entry 66. Defendants have submitted
opposition to plaintiff’s motion. Docket Entry 68. Defendants do not identify any
prejudice they will suffer if plaintiff Bassy’s motion is granted. Rather, defendants
appear to rely exclusively upon the language of Rule 25(a), and in particular the
statement in the rule that an action by a decedent “must be dismissed” if a motion for
substitution is not made “within 90 days after service of a statement noting the death.”
Plaintiffs’ motion should be granted for two reasons. First, it is far from clear that
the August 28, 2013 letter from plaintiffs’ counsel is a “statement noting death”
triggering the commencement of the 90-day period described in Rule 25. As a district
court in this Circuit has explained, “[t]he attorney for the decedent has no authority to
suggest the death of his or her client upon the record” because she “is not a party to the
action and the attorney’s authority to represent the decedent terminated upon death.”
Smith v. Planas, 151 F.R.D. 547, 549-50 (S.D.N.Y. 1993). “A representative of the
deceased party, and not that party’s attorney, must make the suggestion of death.” Id.;
see also Morales v. CT Holdings, Inc., 2001 WL 1204011, at *1 (S.D.N.Y. Oct. 10,
2001). Thus, the rule seems to contemplate that the 90 days it provides does not even
begin to run until a representative of a deceased’s estate has been appointed.
Second, despite the language of the rule, this Court has discretion to afford
additional time for substitution. The Advisory Committee Note to the 1963 Amendment
to Rule 25 explicitly contemplates that a motion for substitution will be made within the
rule’s 90-day period “unless the period is extended pursuant to Rule 6(b).” Federal Rule
of Civil Procedure 6(b) in turn authorizes a court to extend the time within which an act
must be done for good cause. Indeed, even the case cited by defendants in support of
their motion noted that, despite what appears to be mandatory language in Rule 25(a),
“courts have extended the time to file a motion for substitution both before and after the
expiration of the 90-day period.” Keating v. Leviton Mfg. Co., Inc., 2009 WL 234654, at
*2 n.1 (E.D.N.Y. Jan 30, 2009) (quotation marks and citation omitted); see also
Kernisant v. City of New York, 225 F.R.D. 422, 427 (E.D.N.Y. 2005).
Here, as noted above, Bassy’s survivors are pursuing appointment of a
representative of Bassy’s estate in Surrogate’s Court. There is no reason to believe that
they have not been diligent. Moreover, defendants have failed to identify any prejudice
they will suffer if additional time for substitution is allowed. Similar circumstances have
been held sufficient to establish good cause to extend time pursuant to Federal Rule of
Civil Procedure 6(b). See Kernisant, 225 F.R.D. at 432.
For all these reasons, the motion is granted. Counsel shall file either an amended
complaint substituting a proper party for Bassy or a letter explaining why she has not done so by
February 3, 2014.
Steven M. Gold
United States Magistrate Judge
Brooklyn, New York
January 17, 2014
U:\DFM 2014\Bassy\Bassy order 011714.docx
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