Kobayashi v. Food Scope NY, LLC et al

Filing 22

ORDER denying 16 Motion to Substitute Party. SEE PDF OF ORDER FOR DETAILS. (Signed by Judge Paul A. Crotty on May 1, 2013) (mov)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x NORIYUKI KOBAYASHI, Plaintiff, II Civ. 8865 (PAC) - again st ­ ORDER FOOD SCOPE NY, LLC, FOOD SCOPE AMERICA , INC , and KOICHI YOKOY AMA in hi s o fficial and individual capacities, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x HONORABLE PAUL A. CROTTY , United States District Judge: Plaintiff Kobayashi instituted thi s act ion on December 5, 2011 against the defendants, his employe r, for alleged violations of the Americans with Disabilities Act. and New York State and New York City Human Rights Law, as we ll as all eged violations of the Famil y and Medical Lea ve Act. Plaintiff, a Japanese natio nal , died in Japan on Jul y 25, 20 12. Five days later, on Jul y 30, 2012, defendant s tiled a Notice, "Noting Death of Plaintiff" Fed. R. Civ. P. 25(a)(I) provides for substitution ofa "proper party" for the decedent. The motion to substitute mu st be made "w ithin 90 days after service of a statement notin g the death" ; failure to do so results in the decedent 's actio n being dismi ssed. Ninety days from Jul y 30, 2012 is October 28 , 2012 (90 Day Count : July (1 day); Augu st (31 days) , September (30 days); October (28 days»). On October 24 , 20 12, counsel for plaintiff sought a 30 day extension of time , pursuant to Fed. R. C iv. P. 6(b)(l)(A), to tile a motion for substituti o n. The Court granted the extension of 30 days from October 28, 2012 (30 Day Count: October (3 day s); November (27 days). Plaintiff's substitution motion wa s due on Novemb er 27, 2012 , but was filed one day late on November 28, 2012. Wh ile the Court wo uld have granted a furt her ex tensio n, plaintiff did not see k o ne. Ap plicatio ns for extensio ns should be free ly granted, but the Court is un w illi ng to do so sua spon te. Th e Co urt will gran t suc h extensi on, if the plaintiff can show error in the Court 's calc ulati o n of tim e; or its o wn "excusable negl ect" for failing to file the moti on o n ti me. See Fed . R. Civ . P 6(b)( I )( B). Acco rdingly, the m otio n to substitute is de ni ed, w ith out prejudi ce to it s renewal upon an appropriate sho wing of how the subst ituti on motion was tim ely, or " excusabl e neg lec t, " in failing to time ly make the substituti o n mot ion. S ince the substi tut io n m ol ion may be re tiled, the Court adds the following comm ents w hi c h must be add ressed in any renewed mot io n. The un swo rn declaration made under penalt y of perjury by Rachael Greenfield in its present form fail s to support the application to s ubstitute her as a part y to this acti o n as guardian fo r the decedent's only son, a minor. First o f a ll , it does not specify where she signed th e decl a ration or whe re s he cunentl y li ves. We know o nl y-and thi s fro m the fonn of he r decl arati on- tha t it wa s executed som ewhe re in the "Un ited States, its te nitories , possessio ns or commonwea lth s." More spec ificity is requ ired. With regard to Ms. Gree nfi e ld's representations, there is no doc umen tary proof, even th o ugh o ffi c ial records mi ght support many of the claim s: Maniage Li cense o f decedent and Ms. Greenfi e ld (Gree nfi e ld, 'i]2). Bil1h Ce rtiti cate of minor child s how ing parent s ' identi ties (G reenfi e ld , 1 13). Di vo rce Dec ree of deceden t and Ms. Greenti e ld (Greenfield , 'i]4 ). C ustody Order for minor child (Greenfie ld , 'i] S). Othe r re presentati o ns a re far too concl usory and need funh er proof: deceden t "d id not have a will. had o nl y one son ... a nd did not re man y." (G reenfield. 'i] 7). Also, a fUl1her 2 exp lanation for the statement that the decedent's "property consisted only of personal belongings. Those bel ongin gs have already been d ispersed to" the minor child. (G ree nfi e ld , ~ 9). This assertion rai ses , a t least, th e follow ing question s: w ha t was the personal property, who ga ve the property to the mino r, w ho a utho ri zed the tra nsfer, is there any evidence 01 this ' tra ns fer? P lain tiffs counsel assumes that the law of New York app lies. While the law of the forum- New York-applies , that does not mean that New Yo rk wo uld c hoose New York law as applicable to the deced e nt "who was born in Ja pa n a nd was a Japanese citizen , la nd] died (int esta te) in Japan after he returned home from the United States in January, 2012" (about 6-3 /4 months before hi s death). (Greenfield, ~ 6). In these circumstances, the New Y ork forum might well c hoose Japanese law as controlling the issue of who now owns decedent ' s property or claims. New York law might se lec t O rego n law. if the minor child s till li ves w he re he is sa id to ha ve been born. It is difficult to answer these questions beca use the G reen lield al'lidavit does not specify w here either the declarant or the minor child resides. Whil e the Co urt is willing to consider a revised moti on lo r substitution, the affida vit in support of the s ubstitution must be accompan ied by an aflidavit or declaration w ith ha rd , supportab le facts a nd o fti c ial records , demons tra ting w hy Ms. G reen lie ld sho uld be substituted as a prope r pany to thi s action as a guardian for the decedent ' s minor son. The motion to substitute should also ad dress the choice of law questions, as it is not c lear at this stage why New York law should contro l the estate ofa Japanese citizen w ho dicd intesta te in Japan . Datcd: New York. New York May 1,20 13 SO~Z[D -- ~- PAUL A. CROTTY United State s District Judge 3

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