Nicosia v. United States Postal Service
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
MEMORANDUM & ORDER
-againstUNITED STATES OF AMERICA,
Kenneth A. Auerbach, Esq.
Cartier, Bernstein, Auerbach & Dazzo, P.C.
100 Austin Street, Building 2
Patchogue, NY 11772
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
motion is GRANTED.
I. Factual Background
this action on September 15, 2011 pursuant to the Federal Tort
Specifically, Plaintiff alleges that at approximately
sidewalk leading to the front door of the post office.
¶¶ 7, 8, 15.)
As a result, she sustained serious, harmful and
(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.
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).
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
ninety-day period and substitute a party.
(Pl.’s Opp. Ltr.,
Docket Entry 25, at 1.)
Counsel maintained that Plaintiff’s
substitution of the executrix in the present matter.
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.)
counsel informed the Court that he had received the Letters
(Pl.’s Dec. Ltr., Docket Entry 30, at 1.)
same day, Defendant filed a sur-reply, essentially reiterating
(Def.’s Sur-Reply, Docket Entry 31.)
on December 31, 2013, Plaintiff’s counsel filed a sur-reply of
his own, asking that the Court hold any decision in abeyance
Administratix of the Estate, also passed away.
Reply, Docket Entry 32, at 1.)
standard before turning to Defendant’s motion and the parties’
arguments more specifically.
I. Legal Standard
substitution] is not made within 90 days after service of a
FED. R. CIV. P.
Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467, 470-71 (2d Cir.
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
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
(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,
“[D]ismissal of an action is warranted when no motion
suggestion of death is filed.”
Keating v. Leviton Mfg. Co.,
Inc., No. 06-CV-6027, 2009 WL 234654, at *2 (E.D.N.Y. Jan. 30,
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
F.R.D. 422, 427 (E.D.N.Y. 2005) (“The Court is authorized to
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
committee’s notes (“The motion may not be made later than 90
record] unless the period is extended pursuant to Rule 6(b), as
[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.”).
A. Plaintiff’s Request for an Abeyance
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
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).
six months ago.
Since then, the Court has not received any
communication from either party and the underlying motion has
been pending since October of last year.
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
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.”
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
FED. R. CIV. P. 6(b)(1).
Kernisant, 225 F.R.D. at 429 (discussing waiver due to a failure
to move pursuant to Rule 6).
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
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).
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
(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
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.
dismiss is GRANTED and Plaintiff’s claims are DISMISSED WITH
The Clerk of the Court is directed to mark this
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
1 , 2014
Central Islip, NY
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