Harris v. Livingston County

Filing 128

DECISION AND ORDER Defendants' motions to dismiss 126 127 are accordingly granted, and the Third Amended Complaint is dismissed in its entirety, without prejudice, pursuant to Fed. R. Civ. Proc. 25(a)(1) and 41(b). The Clerk of the Court is directed to close the case. Signed by Hon. David G. Larimer on 11/5/2021. Copy of this Decision and Order sent by First Class Mail to plaintiff Joseph A. Harris on 11/5/2021 to his address of record. (KAH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
JOSEPH A. HARRIS,
DECISION AND ORDER
Plaintiff,
14-CV-6260L
v.
JEREMY SLOCUM et al.,
Defendants.
________________________________________________

On May 16, 2014, plaintiff commenced the instant action pro se, seeking damages for, inter
alia, deliberate indifference to serious medical needs while he was incarcerated at the Livingston
County Jail. (Dkt. #1). The operative pleading is plaintiff’s Third Amended Complaint, filed on or
about November 17, 2016. (Dkt. #17, #18). Discovery was ongoing as of April 2021. (Dkt. #120).
On July 12, 2021, Ryan G. Smith, counsel for six of the defendants, filed a Suggestion of
Death for the plaintiff, stating that on information and belief, plaintiff had died on or about June
24, 2021. (Dkt. #123). A copy of the Suggestion of Death was mailed to plaintiff’s last known
address on or about July 12, 2021, but was returned as undeliverable, with a stamped message
from the United States Postal Service that plaintiff had moved without leaving a forwarding
address. (Dkt. #123-1).
On July 14, 2021, Magistrate Judge Pedersen issued an Order instructing plaintiff’s estate
that it had 90 days from the filing of the Suggestion of Death to move for substitution, and
cautioning that if no motion for substitution was filed, the matter would be dismissed. (Dkt. #124).
That Order, too, was served upon plaintiff’s last known address, but was returned as undeliverable,

with the United States Postal Service indicating that the recipient had, “Moved / Left No Address
/ Unable to Forward.” (Dkt. #125).
On October 22, 2021 and October 25, 2021, defendants moved to dismiss the matter for
failure to substitute a representative pursuant to Fed. R. Civ. Proc. 25(a)(1), and/or for failure to
prosecute pursuant to Fed. R. Civ. Proc. 41(b), noting that more than 90 days had passed since the
filing and service of the Suggestion of Death, without any representative of the estate having
appeared or moved for substitution. (Dkt. #126, #127).
Rule 25(a)(1) of the Federal Rules of Civil Procedure provides that:
[i]f 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.
Fed. R. Civ. Proc. 25(a)(1).
The Second Circuit has held that Rule 25(a)(1) “does not require that the statement [of
death] identify the successor or legal representative; it merely requires that the statement of death
be served on the involved parties.” Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467, 470 (2d Cir.
1998). “District courts in this Circuit have extrapolated from this principle to conclude that service
on a deceased party’s successors is not necessary in order for a case to [be] dismissed as against
the deceased party pursuant to Rule 25.” Simons v. Commissioner of Soc. Sec., 2021 U.S. Dist.
LEXIS 175814 at *30-*31 (S.D.N.Y. 2021), report and recommendation adopted by 2021 U.S.
Dist. LEXIS 195068 (S.D.N.Y. 2021).
Pursuant to Fed. R. Civ. Proc. 25(a)(3), service on parties is to be made in accordance with
Fed. R. Civ. Proc. 5, which permits service by mail “to the person’s last known address – in which
event service is complete upon mailing.” Fed. R. Civ. Proc. 5(b)(2)(C). This is so, regardless of

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whether the item is later returned as undeliverable. See Thomas v. RJM Acquisition LLC, 2014
U.S. Dist. LEXIS 23000 at *7 n.3 (service on party’s address of record is considered proper and
complete upon mailing, even if the mailed item is returned as undeliverable).
As such, I find that the defendants’ mailing of the Suggestion of Death to plaintiff’s last
known address was sufficient to satisfy the requirement of serving plaintiff under Rule 25, even
though it was returned as undeliverable. I further find that requiring defendants to make additional
efforts to identify and serve plaintiff’s representatives would be inappropriate in light of the “de
minimis standard to which suggesting parties are held” by the Second Circuit, and unduly
burdensome under the particular circumstances of this case.1 Pastorello v. City of New York, 2000
U.S. Dist. LEXIS 15137 at *6 (S.D.N.Y. 2000). See Izzarry v. Sullivan, 1989 U.S. Dist. LEXIS
7181 at *2 (S.D.N.Y. 1989) (defendant is entitled to judgment dismissing the case under Rule 25
where defendant “mailed a copy of the suggestion of death to plaintiff’s last known address, and
the envelope was returned by the United States Postal Service,” whereafter no motion for
substitution was timely filed). See generally Simons, 2021 U.S. Dist. LEXIS 175814 at *31.
Because no one has timely moved to be substituted for plaintiff or otherwise responded to
the July 14, 2021 Order directing timely substitution, dismissal of the Third Amended Complaint
is warranted, pursuant to Fed. R. Civ. Proc. 25(a)(1) and/or Fed. R. Civ. Proc. 41(b).
However, “[b]ecause the plaintiff proceeded pro se and the suggestion of death and
subsequent Order . . . were served only on the deceased plaintiff at h[is] last known address, the
Court cannot know with certainty at this stage whether a legal successor exists who may attempt

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It appears that identifying an estate representative would be singularly challenging here. Research reveals no
published obituaries, marriage records, public records listing co-residents or alternate addresses for plaintiff, or other
typical means of identifying potential representatives of the plaintiff’s estate. The sole published reference to
plaintiff’s death that the Court has been able to locate appears on the website of Rochester Cremation, a cremation
services company, and states simply: “Joseph A. Harris. Nunda, NY: June 23, 2021. Joseph is survived by loving
family and friends.” https://rochestercremation.com/obituary/joseph-a-harris (last visited November 1, 2021).

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to substitute for the plaintiff and renew the case.” Miller v. DCM, Inc., 2007 U.S. Dist. LEXIS
25283 at *2-*3 (S.D.N.Y. 2007) (dismissing matter pursuant to Fed. R. Civ. Proc. 25(a)(1) without
prejudice, in order to preserve the remedy of an enlargement of time under Fed. R. Civ. Proc. 6(b),
in the event a successor or legal representative comes forward). See also Steward v. City of New
York, 2009 U.S. Dist. LEXIS 150556 at *9-*10 (E.D.N.Y. 2009) (Rule 25 does not mandate
dismissal with prejudice, and “gives courts flexibility to tailor the type of dismissal to the facts of
the case”); Keating v. Leviton Mfg. Co., 2009 U.S. Dist. LEXIS 6839 at *6 n. 1 (E.D.N.Y. 2009)
(dismissing matter under Rule 41(b) without prejudice, where estate representatives did not
respond to the Suggestion of Death or to correspondence from the court after five months).
Given that service of the Suggestion of Death and subsequent Order by mail upon the
plaintiff’s last known address resulted only in those mailings being returned, unopened and
undelivered – making them the functional equivalent of messages shouted into the ether – I find
that under the circumstances, dismissal should be without prejudice.
Defendants’ motions to dismiss (Dkt. #126, #127) are accordingly granted, and the Third
Amended Complaint is dismissed in its entirety, without prejudice, pursuant to Fed. R. Civ. Proc.
25(a)(1) and 41(b). The Clerk of the Court is directed to close the case.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
November 5, 2021

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