Chassman et al v. Bezzabeh et al

Filing 116

MEMORANDUM OPINION AND ORDER: Plaintiffs' motion for substitution (Dkt. No. 114) is denied without prejudice to a separately filed action against the administrator of Mr. Bezzabeh's estate. The Clerk of Court is directed to send a copy of this order to Plaintiffs Margie Chassman and Samey Gebremengist by certified mail. (As further set forth in this Memorandum Opinion and Order.) (Signed by Judge Gregory H. Woods on 3/6/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
MARGIE CHASSMAN and SAMEY
GEBREMENGIST,
:
:
Plaintiffs, :
:
-against:
:
ALEMTSEHAI ZERIHUN,
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:
Defendant. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 3/6/17

1:15-cv-4869-GHW
MEMORANDUM
OPINION AND ORDER

GREGORY H. WOODS, District Judge:
Plaintiffs pro se Margie Chassman and Samey Gebremengist have filed an application to
substitute the Ethiopian court-appointed administrator of deceased Defendant Mulugeta Bezzabeh’s
estate pursuant to Rule 25 of the Federal Rules of Civil Procedure. For the reasons stated below,
this motion is DENIED, without prejudice to the filing of a separate action against the
administrator of Mr. Bezzabeh’s estate.
I.

BACKGROUND
Plaintiffs filed this action on June 23, 2015. On March 11, 2016, counsel for Defendant

Mulugeta Bezzabeh filed a letter indicating that Mr. Bezzabeh had passed away on March 10, 2016.
Dkt. No. 40. In an order dated March 14, 2016, the Court construed counsel’s March 11 letter as a
suggestion of death under Federal Rule of Civil Procedure 25(a), and noted that by operation of the
rule, “any party [could] file a motion for substitution pursuant to Rule 25(a)(1) no later than June 13,
2016.” Dkt. No. 43.
Plaintiffs filed a motion for substitution on June 8, 2016. Dkt. No. 50. The Court denied
that motion without prejudice on June 13, 2016, explaining that “Plaintiffs fail to provide any
evidence in support of their motion that a representative has been appointed to administer Mr.

Bezzabeh’s estate or that the estate has been fully distributed to any successors.” Dkt. No. 51.
Nevertheless, the Court granted Plaintiffs a thirty-day extension of time to file a renewed motion for
substitution. Id. at 2.
Plaintiffs filed a renewed motion for substitution on July 11, 2016, seeking to substitute the
purported “legal heirs” of Mr. Bezzabeh, namely his wife and three children. Dkt. No. 55. The
Court denied the renewed motion on August 8, 2016, for largely the same reasons that Plaintiffs’
first motion for substitution was denied. Dkt. No. 62. However, in light of Plaintiffs’ pro se status,
the Court granted Plaintiffs leave to file a renewed motion for substitution no later than September
7, 2016. Id. at 3.
On September 6, 2016, Plaintiffs filed a letter with the Court requesting, among other things,
“an extension of time” in light of their intention to “file[] a motion in Ethiopia for purposes of
compelling the heirs [] to disclose the written will.” Dkt. No. 76. The Court construed Plaintiffs’
request as an application for an extension of time to file a motion for substitution with respect to
Mr. Bezzabeh, which the Court denied on September 8, 2016 for failure to provide good cause for
their failure to file a renewed motion by the deadline establish in the Court’s July 11, 2016 order. Id.
at 1-2. In the September 8 order, the Court also dismissed without prejudice Plaintiffs’ action
against Mr. Bezzabeh. Id. at 2.
On February 28, 2017, Plaintiffs filed yet another request for substitution under Rule 25.
Dkt. No. 114. Plaintiffs’ latest application states that they are seeking to “substitute the
administrator, attorney Amaha Mekonnen” for Mr. Bezzabeh “pursuant to FRCP 25.” Id.
Plaintiffs’ application does not address the timeliness of their request nor the fact that the Court had
previously dismissed Mr. Bezzabeh from this action.
II.

LEGAL STANDARD
Rule 25(a)(1) of the Federal Rules of Civil Procedure provides:
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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.
As is evident on the face of the rule, a motion for substitution must be made within 90 days after the
service of a statement noting the death. See also, e.g., Regalado v. Kohl’s Dep’t Stores, Inc., No. 13-cv5624 (JS) (AKT), 2015 WL 8481881, at *1 (E.D.N.Y. Dec. 8, 2015); Harp v. City of New York, No.
01-cv-6604 (JGK), 2008 WL 2971702, at *2 (S.D.N.Y. July 31, 2008). In addition, the rule itself is
phrased in permissive terms, and provides that a court “may,” but is not required to, order
substitution of a proper party. See, e.g., Fishman v. Cnty. of Nassau, No. 10-cv-3231 (MKB), 2013 WL
1339466, at *15 (E.D.N.Y. Apr. 1, 2013) (“The language of Rule 25 is permissive, and the decision
whether to substitute parties lies within the discretion of the trial judge and he may refuse to
substitute parties in an action even if one of the parties so moves.”) (quoting Natale v. Country Ford
Ltd., 287 F.R.D. 135, 137 (E.D.N.Y. 2012) (brackets and internal quotation marks omitted)); U.S. ex
rel. Colucci v. Beth Israel Medical Ctr., 603 F. Supp. 2d 677, 684 (S.D.N.Y. 2009) (“Courts have
discretion to allow substitution under Rule 25(a)(1)).
III.

DISCUSSION
As noted above, a statement noting Mr. Bezzabeh’s death was made on March 11, 2016.

Plaintiffs’ February 28, 2017 motion for substitution—filed 354 days after the statement of death—
is plainly untimely. And the Court has been provided with no basis for further extensions of time
for Plaintiffs to move for substitution. The ninety-day limit provided in Rule 25(a)(1) can be
extended “for good cause pursuant to Rule 6(b),” Bussey v. City of New York, No. 15-cv-3790 (ARR)
(JO), 2016 WL 3277363, at *1 (E.D.N.Y. May 23, 2016), but Plaintiffs have not attempted to make
such a showing. In any event, the Court would be inclined to exercise its discretion to deny
Plaintiffs’ latest substitution motion in light of the age of this case, the geographic location of the
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administrator of Mr. Bezzabeh’s estate and Plaintiffs’ history of difficulty serving documents on
individuals and entities located abroad, and the long passage of time that has elapsed since the
statement of death was made in this case.
Furthermore, as noted, the Court dismissed the claims against Mr. Bezzabeh on September
8, 2016. Dkt. No. 76 at 2. Plaintiffs’ motion seeks to substitute the administrator of Mr. Bezzabeh’s
estate for Mr. Bezzabeh at a time when Mr. Bezzabeh is no longer a party to this action. Rule 25
does not contemplate such a procedure, however, and Plaintiffs’ motion would have to be denied on
this basis as well.
Accordingly, Plaintiff’s motion for substitution is denied. This denial is based upon Federal
Rule of Civil Procedure 25, and is without prejudice to a separately filed action against the
administrator or Mr. Bezzabeh’s estate.
IV.

CONCLUSION
Plaintiffs’ motion for substitution (Dkt. No. 114) is denied without prejudice to a separately

filed action against the administrator of Mr. Bezzabeh’s estate.
The Clerk of Court is directed to send a copy of this order to Plaintiffs Margie Chassman
and Samey Gebremengist by certified mail.
SO ORDERED.
Dated: March 6, 2017
New York, New York

_____________________________________
_____________________
_ ___ ___________
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GREGORY H. WOODS
GREGORY
GOR
United States District Judge

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