Coleman v. System Dialing LLC et al

Filing 50

MEMORANDUM OPINION AND ORDER.....Accordingly, Coleman is a proper party for substitution. Because Colemans expanded authority under the Ex Parte Order ends when the Surrogates Court issues a letter of administration, Coleman will be required to updat e the Court on the status of his efforts to become the estates representative in the Surrogates Court. In the event any party other than Coleman is appointed as representative of the estate, the defendants will be permitted to move to dismiss the complaint on the basis that Coleman lacks standing to bring this action. Colemans January 15 motion to substitute parties under Rule 25(a)(1) is granted. (Signed by Judge Denise L. Cote on 3/22/2016) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
DENARDO COLEMAN as Guardian for
:
ORNETTE COLEMAN,
:
Plaintiff,
:
:
-v:
:
SYSTEM DIALING LLC; JORDAN McLEAN;
:
AMIR ZIV, AND JOHN DOES 1-10,
:
:
Defendants.
:
:
-------------------------------------- X

15cv3868 (DLC)
MEMORANDUM OPINION
AND ORDER

DENISE COTE, District Judge:
On May 19, 2015, Denardo Coleman (“Coleman”) filed the
instant action alleging claims under the Anti-Bootlegging Act,
Lanham Act, New York General Business Law, and common law unfair
competition.

The allegations in the complaint are detailed in

the Court’s Opinion and Order dated December 18, 2015.

In

short, Coleman alleges that the defendants have sold and
continue to sell unauthorized recordings of performances by his
late father and famed jazz musician, Ornette Coleman.

Coleman

has acted as Ornette Coleman’s legal guardian since 2013, and
initiated this action in that capacity.
Ornette Coleman died on June 11, 2015.

On July 17,

Coleman’s counsel notified the Court and opposing counsel of
Ornette Coleman’s death in a letter motion to adjourn the
initial pretrial conference.

The letter stated that Coleman

intended to substitute a new plaintiff in this action.

On

September 25, Coleman submitted an update on the substitution of
a new plaintiff.

That letter stated that “[t]he necessary

documents have been gathered and provided to counsel for the
estate, and are expected to be on file shortly.”

On October 23,

the defendants filed a motion to dismiss the complaint arguing
(1) that Coleman lacked standing to bring his claims, (2) the
claims were subject to an arbitration agreement in a contract
between Ornette Coleman and the defendants, and (3) any claims
related to the validity of the agreement must be determined by
an arbitrator.
On December 2, the New York Supreme Court, New York County,
issued an ex parte order (the “Ex Parte Order”) stating
that the authority of the Guardian, DENARDO COLEMAN,
is hereby expanded pursuant to Section 81.21(a)(2) of
the Mental Hygiene Law, to allow the Guardian to
continue prosecuting [the instant action in the
Southern District of New York]. Such expanded
authority shall continue until an administrator is
appointed and qualifies to represent the estate of
ORNETTE COLEMAN.
On December 9, Coleman filed a motion for an extension of time
to file a Rule 25 motion.

By an Opinion and Order dated

December 19, the Court granted Coleman’s motion for a
retroactive extension of time to file a Rule 25 motion and
denied the defendants’ motion insofar as it was predicated on
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Coleman’s failure to timely move to substitute a new plaintiff.
By separate order dated that same day, the Court denied the
defendants’ motion to dismiss on the ground that the purported
contract requires arbitration, without prejudice to renewal
following discovery on the formation of the contract.

By

separate order dated the same day, the Court gave the parties
until January 8, 2016 to stipulate to the substitution of
Coleman as plaintiff.

In the event the parties could not reach

an agreement, Coleman was required to file a Rule 25 motion by
January 15.

The parties did not reach an agreement and on

January 15, Coleman timely filed his Rule 25 motion.

The motion

was fully submitted on February 5.
Discussion
“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.”

Fed. R. Civ. P. 25(a)(1).

Under

the plain language of the rule, substitution will be granted if
three requirements are met: (1) the motion is timely, (2) the
movant’s claims have not been extinguished by the death of the
original party, and (3) the movant is a proper party for
substitution.

The first requirement is satisfied because the

Court previously granted Coleman a retroactive extension of time
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to file this motion, and he filed this motion within the
extended deadline.
element.

The defendants do not dispute the second

The only remaining issue is whether Coleman is a

proper party for substitution.
Whether Coleman is the proper party to represent the estate
of Denardo Coleman is a question of state law.

In the Ex Parte

Order, the New York Supreme Court held that Coleman’s authority
as guardian is “expanded pursuant to Section 81.21(a)(2) of the
Mental Hygiene Law, to allow [Coleman] to continue prosecuting”
the instant action.

Such authority will continue “until an

administrator is appointed” by the Surrogate’s Court.

The Ex

Parte Order is within the authority of the New York Supreme
Court.

Under the New York Mental Hygiene Law, a guardian’s

authority may be expanded to “defend or maintain any judicial
action or proceeding to a conclusion until an executor or
administrator is appointed.”

N.Y. Mental Hyg. Law § 81.21.

Although litigation concerning the property or funds of a
decedent’s estate are generally brought in the Surrogate’s
Court, under New York law, the Supreme Court and the Surrogate’s
Court have concurrent jurisdiction over the administration of a
decedent’s estate.

Cipo v. Van Blerkom, 813 N.Y.S.2d 532, 532-

33 (2d Dep’t 2006).

Accordingly, Coleman is a proper party for

substitution.
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Because Coleman’s expanded authority under the Ex Parte
Order ends when the Surrogate’s Court issues a letter of
administration, Coleman will be required to update the Court on
the status of his efforts to become the estate’s representative
in the Surrogate’s Court.

In the event any party other than

Coleman is appointed as representative of the estate, the
defendants will be permitted to move to dismiss the complaint on
the basis that Coleman lacks standing to bring this action.
Conclusion
Coleman’s January 15 motion to substitute parties under
Rule 25(a)(1) is granted.
Dated:

New York, New York
March 22, 2016

__________________________________
DENISE COTE
United States District Judge

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