Nicosia v. United States Postal Service
Filing
33
MEMORANDUM & ORDER granting 24 Motion to Dismiss; For the foregoing reasons, Defendant's motion to dismiss is GRANTED and Plaintiff's claims are DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 7/1/2014. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
MARIANNE NICOSIA,
Plaintiff,
MEMORANDUM & ORDER
11-CV-5069(JS)(GRB)
-againstUNITED STATES OF AMERICA,
Defendants.
-----------------------------------X
APPEARANCES
For Plaintiff:
Kenneth A. Auerbach, Esq.
Cartier, Bernstein, Auerbach & Dazzo, P.C.
100 Austin Street, Building 2
Patchogue, NY 11772
For Defendants
USA:
Kenneth M. Abell, Esq.
United States Attorney’s Office
610 Federal Plaza, 5th Floor
Central Islip, NY 11722
SEYBERT, District Judge:
Currently pending before the Court is defendant United
States of America’s (“Defendant”) motion to dismiss for failure
to substitute a proper plaintiff pursuant to Federal Rule of
Civil
Procedure
25.
For
the
following
reasons,
Defendant’s
motion is GRANTED.
BACKGROUND
I. Factual Background
Plaintiff
Marianne
Nicosia
(“Plaintiff”),
commenced
this action on September 15, 2011 pursuant to the Federal Tort
Claims
Act,
28
U.S.C.
§
2401(b),
following
a
slip
and
fall
accident
on
office.
Specifically, Plaintiff alleges that at approximately
9:00
a.m.
December
she
29,
slipped
2010
and
outside
fell
on
of
snow
Defendant’s
and/or
ice
sidewalk leading to the front door of the post office.
¶¶ 7, 8, 15.)
permanent
anguish
on
the
(Compl.
As a result, she sustained serious, harmful and
injuries,
and
post
loss
of
and
suffered
normal
from
pursuits
pain,
and
shock,
pleasures
mental
of
life.
(Compl. ¶ 18.)
II. Procedural Background
Plaintiff passed away on January 3, 2013.
to Adjourn, Docket Entry 22, at 1.)
of her passing on May 9, 2013.
(Pl.’s Mot.
Counsel notified the Court
(Pl.’s Mot. to Adjourn at 1.)
Almost five months later, on October 1, 2013, Defendant filed a
motion to dismiss for failure to substitute a proper plaintiff
pursuant to Federal Rule of Civil Procedure 25(a)(1).
(Def.’s
Mot. to Dismiss, Docket Entry 24, at 1.)
Although Plaintiff did not file a formal motion to
extend, counsel did oppose Defendant’s motion to dismiss and
requested
an
extension
of
time
nunc
pro
tunc
ninety-day period and substitute a party.
to
extend
the
(Pl.’s Opp. Ltr.,
Docket Entry 25, at 1.)
Counsel maintained that Plaintiff’s
Will
Affidavits
did
attached,
not
which
have
are
any
required
to
of
Attesting
probate
and
Witnesses
allow
substitution of the executrix in the present matter.
2
for
(Pl.’s
Opp. Ltr. at 1.)
Defendant filed a reply on October 1, 2013
and, thus, the motion was fully briefed.
(Def.’s Reply Br.,
Docket Entry 26.)
Thereafter,
without
leave
of
both
Court.
parties
On
submitted
December
23,
sur-replies,
2013,
Plaintiff’s
counsel informed the Court that he had received the Letters
Testamentary.
(Pl.’s Dec. Ltr., Docket Entry 30, at 1.)
That
same day, Defendant filed a sur-reply, essentially reiterating
prior arguments.
(Def.’s Sur-Reply, Docket Entry 31.)
Finally,
on December 31, 2013, Plaintiff’s counsel filed a sur-reply of
his own, asking that the Court hold any decision in abeyance
because
Plaintiff’s
daughter,
who
had
been
acting
Administratix of the Estate, also passed away.
as
the
(Pl.’s Sur-
Reply, Docket Entry 32, at 1.)
DISCUSSION
The
Court
will
first
address
the
applicable
legal
standard before turning to Defendant’s motion and the parties’
arguments more specifically.
I. Legal Standard
Rule
25(a)(1)
provides
that
“[i]f
[a]
motion
[for
substitution] is not made within 90 days after service of a
statement
decedent
noting
must
be
the
death,
the
dismissed.”
action
by
or
FED. R. CIV. P.
against
the
25(a)(1);
see
Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467, 470-71 (2d Cir.
3
1998) (affirming dismissal for failure to move for substitution
within ninety days after the statement of death was filed).
“Courts routinely dismiss cases with prejudice where
there is a failure to comply with the time period specified by
Rule 25(a).”
Mulvey v. Sonnenschein Nath & Rosenthal LLP, No.
08-CV-1120, 2011 WL 5191320, at *1 (E.D.N.Y. Oct. 31, 2011);
see, e.g., Unicorn Tales, 138 F.3d at 469; Nauman v. Rensselaer
Polytechnic
Inst.,
No.
07-CV-0740,
2010
WL
1257876,
at
*1
(N.D.N.Y., Mar. 26, 2010); Smith v. Doe, No. 08-CV-10437, 2010
WL 1404099, at *5 (S.D.N.Y. Jan. 25, 2010); Rodgers v. City of
N.Y., No. 05-CV-5521, 2006 WL 2943621, at *1 (E.D.N.Y. Sept. 6,
2006).
for
“[D]ismissal of an action is warranted when no motion
substitution
is
made
more
suggestion of death is filed.”
than
ninety
days
after
a
Keating v. Leviton Mfg. Co.,
Inc., No. 06-CV-6027, 2009 WL 234654, at *2 (E.D.N.Y. Jan. 30,
2009).
Therefore, “the ninety-day limitation of Rule 25 is . .
. strictly applied.”
Merisier v. Comm'r, Soc. Sec. Admin., No.
11-CV-1168, 2012 WL 3230449, at *2 (E.D.N.Y. Aug. 6, 2012).
However, Federal Rule 6(b) allows for an extension of
the
ninety-day
period.
See
Kernisant
v.
City
of
N.Y.,
225
F.R.D. 422, 427 (E.D.N.Y. 2005) (“The Court is authorized to
extend
the
time
in
which
to
file
a
motion
for
substitution
before or after the expiration of the ninety-day period pursuant
to Fed.R.Civ.P. 6(b).”); see also FED. R. CIV. P. 25 advisory
4
committee’s notes (“The motion may not be made later than 90
days
after
the
service
of
the
statement
[of
death
upon
the
record] unless the period is extended pursuant to Rule 6(b), as
amended.”).
Thus,
[p]arties still may move pursuant to Rule
6(b) for an extension of time “after the
time has expired if the party failed to act
because of excusable neglect,” Fed.R.Civ.P.
6(b)(1)(B), but failure to put forth a
reason for not moving in a timely fashion
will result in dismissal without further
inquiry by the court.
Merisier, 2012 WL 3230449, at *2.
However, if no motion is made
for an extension under Rule 6(b), it is deemed waived and the
action must be dismissed.
See Kernisant 225 F.R.D. at 429 (“The
Court, [in Unicorn Tales,] found that the motion made before the
district court was one filed under Rule 25, and therefore since
the party below did not make a motion under Fed.R.Civ.P. 6(b),
it was deemed waived.”).
II. Analysis
A. Plaintiff’s Request for an Abeyance
Initially,
motion
is
the
appropriate
Court
at
finds
this
time.
that
a
decision
Although
on
the
Plaintiff’s
counsel did request that the Court hold a decision in abeyance,
he do so in an improper sur-reply.
See Jandres v. Armor Health
Care Inc., No. 12-CV-3132, 2014 WL 1330655, at *4 (E.D.N.Y. Mar.
31, 2014) (“Sur-replies . . . generally require permission of
5
the
Court.”);
Corona
Realty
Holding,
LLC
v.
Town
of
N.
Hempstead, No. 08-CV-4997, 2009 WL 2707243, at *1 n.1 (E.D.N.Y.
Aug. 24, 2009) (declining to consider a sur-reply filed without
court permission), aff’d, 382 F. App’x 70 (2d Cir. 2010).
Moreover,
six months ago.
counsel
filed
the
“request”
approximately
Since then, the Court has not received any
communication from either party and the underlying motion has
been pending since October of last year.
languish indefinitely.
Cases simply cannot
See, e.g., Robinson v. Januszewski, No.
11-CV-0747, 2012 WL 1247225, at *3 (E.D.N.Y. Apr. 12, 2012).
B. Defendant’s Motion to Dismiss
Defendant correctly asserts that courts strictly apply
Rule 25.
Nonetheless, courts also have discretion to extend the
time period if appropriate.
See Nat’l Equip. Rental, Ltd. v.
Whitecraft Unlimited, Inc., 75 F.R.D. 507, 510 (E.D.N.Y. 1977)
(District court “in its discretion may nevertheless extend the
90 day period [for filing a motion for substitution] and grant
an otherwise untimely motion to substitute a party defendant
. . . . Absent bad faith on the part of the movant or undue
prejudice to the other parties to suit, discretionary extensions
should be liberally granted.”).
Here, though, such an extension
is not warranted.
The 1963 Amendment to Rule 6(b) “permits the court to
enlarge the time for moving where good cause is shown.”
6
Id.
Thus, Rule 6(b)(1) provides that “the court may, for good cause,
extend the time: (A) . . . if a request is made, before the
original time or its extension expires; or (B) on motion made
after the time has expired if the party failed to act because of
excusable neglect.”
has
not
made
any
FED. R. CIV. P. 6(b)(1).
explicit
mention
of
Notably, Plaintiff
Rule
6
at
all.
See
Kernisant, 225 F.R.D. at 429 (discussing waiver due to a failure
to move pursuant to Rule 6).
Furthermore,
warranting
an
Plaintiff
extension
of
has
time
not
to
shown
file
a
“good
motion
cause
for
substitution pursuant to Rules 6(b) and 25(a)(1) of the Federal
Rules of Civil Procedure.”
Lungu v. New Island Hosp./St. Joseph
Hosp., No. 11-CV-0755, 2012 WL 3115930, at *2 (E.D.N.Y. July 24,
2012) (denying the plaintiff’s motion for an extension of time
because
he
provided
no
explanation
for
his
six
month
delay
between the plaintiff’s death and the date he filed a petition
in the Surrogate’s Court for letters of administration and never
expressed any difficulty in appointing an administrator).
Here,
plaintiff’s counsel has not explained why he waited five months
to notify the Court of Plaintiff’s passing and why he did not
seek an extension of the ninety days until after Defendant moved
for dismissal.
(See Pl.’s Opp. Ltr. at 1.)
Moreover, this issue has been pending before the Court
for approximately nine months and Plaintiff’s counsel still has
7
yet to file for substitution.
Although the Court is sympathetic
to the delays that may accompany probate and the death of the
Administratrix of the Estate, the Court does not find good cause
to extend the time period any further.
See Mulvey, 2011 WL
5191320, at *1 (dismissing the action because the statement of
death was recorded over a year ago, there was no activity in the
case for close to seven months, no substitution had been made,
and the Court received no communication from any representative
seeking to pursue the action).
Accordingly, Defendant’s motion to dismiss is GRANTED.
CONCLUSION
For
the
foregoing
reasons,
Defendant’s
motion
to
dismiss is GRANTED and Plaintiff’s claims are DISMISSED WITH
PREJUDICE.
The Clerk of the Court is directed to mark this
matter CLOSED.
SO ORDERED.
Dated:
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
July
1 , 2014
Central Islip, NY
8
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