Cabisca v. City of Rochester, New York et al

Filing 85

ORDER denying 71 Motion to Substitute Party; granting 75 Motion to Substitute Party. Signed by Hon. Jonathan W. Feldman on 12/18/18. (SR)-CLERK TO FOLLOW UP- Maryrose and Earl Wengert as co-executors to be substituted for defendant Nolan Wengert

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________
TINA CABISCA,
Plaintiff,

DECISION & ORDER
14-CV-6485

v.
CITY OF ROCHESTER,
Defendant.
_______________________________

Familiarity with prior proceedings and oral arguments in this
case is assumed for purposes of this Decision and Order.

Suffice

it

Cabisca

to

say,

(“plaintiff”)

this

civil

alleges

rights

that

action

members

filed

of

the

by

Tina

Rochester

Police

Department (the “defendants”) shot and killed her dog and then
used excessive force in arresting her.

See Cabisca v. City of

Rochester, No. 14-CV-6485, 2017 WL 4221090 (W.D.N.Y. Sept. 21,
2017).
In April 2017, after the plaintiff’s lawsuit was filed, one
of the defendants, Rochester Police Investigator Nolan Wengert
(“Wengert”), passed away.

Since that time, the parties and this

Court have been struggling to reach a determination as to whether
plaintiff has timely substituted the proper party for defendant
Wengert

pursuant

to

Rule

25

of

the

Federal

Rules

of

Procedure.
Federal Rule of Civil Procedure 25(a)(1) provides that

Civil

[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. P. 25(a)(1).

On June 19, 2018 the Court issued a

Decision and Order (Docket #60) finding that (1) plaintiff’s civil
rights claims brought under 42 U.S.C. § 1983 against Officer
Wengert “were not extinguished by his death” (id. at 3) and (2)
the Suggestion of Death filed by defense counsel on March 7, 2018
was ineffective to start the 90-day clock under Rule 25 for two
separate reasons.

First, the Court found that the Notice was

ineffective because it failed to identify a proper party for
substitution.

Second, the Court held that the Suggestion of Death

was ineffective because it was never served on the non-party
(Wengert’s Estate or personal representative) pursuant to Rule 5
of the Federal Rules of Civil Procedure.

Id. at 5-6.

Thereafter, defense counsel filed a motion essentially asking
the

Court

to

reconsider

its

ruling

that

the

March

7,

2018

Suggestion of Death was ineffective and did not commence the 90day clock for the filing of a motion for substitution.

Relying on

Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467 (2d Cir. 1998),
defense counsel argues that the Second Circuit has not interpreted
Rule 25 as requiring a Suggestion of Death to “identify the
successor or legal representative; it merely requires that the

Statement of Death be served on the involved parties.”
470.

Defense counsel is correct.

Id. at

Pursuant to Unicorn Tales, the

Suggestion of Death defense counsel filed on March 7, 2018 was
sufficient to start the 90-day clock found in Rule 25.

The Second

Circuit has endorsed a flexible approach to interpreting Rule 25,
particularly because there can be time delays between the date of
a party’s death and the probate court being in a position to
appoint a representative under the law of the domicile of the
deceased.

Here, the Suggestion of Wengert’s death was filed and

served on plaintiff’s counsel on March 7, 2018 and the 90-day clock
began then.
However, on June 4, 2018, a date within the 90-day cut-off,
plaintiff’s counsel did file a motion to substitute.
#56.

See Docket

Defense counsel opposed the motion because the plaintiff’s

substitution

motion

was

never

served

on

a

representative

of

Wengert’s estate. See Docket #58. In other words, defense counsel
asserts that Rule 25 allows the Statement of Death to be effective
despite not being served on a representative of the Estate but
does not give the same flexibility to the Motion to Substitute –even though the two pleadings must ordinarily be filed within 90days of each other.
Given the flexible approach adopted by the Second Circuit in
Unicorn Tales, supra, I am hesitant to hold that plaintiff’s motion
to

substitute

the

representative

of

the

Wengert

Estate

was

ineffective.

In his motion to substitute, plaintiff’s counsel

noted that it was only on May 19, 2017 that the Monroe County
Surrogate issued an Order saying Mary Rose and Earl Wengert would
be issued letters testamentary.

See Docket 56-1.

Moreover, the motion to substitute was served on defense
counsel who will continue to serve as counsel for defendant Wengert
as he was acting within the scope of his employment during the
events alleged in plaintiff’s complaint.
In any event, the Court may extend the time to substitute
parties under Rule 25(a)(1).

See Kernisant v. City of New York,

225 F.R.D. 422, 432 (E.D.N.Y. 2005) (granting motion to extend
time under Rule 6(b) to file motion to substitute under Rule 25).
Rule 6(b) provides, in pertinent part:
When an act may or must be done within a specified time,
the court may, for good cause, extend the time (A) with
or without motion or notice if the court acts. . . or
(B) on motion made after the time has expired if the
party failed to act because of excusable neglect.
Thus, the court may grant an extension under Rule 6(b)(1)(B) where
the party who failed to make a timely motion demonstrates excusable
neglect.

To demonstrate excusable neglect, “the moving party has

the burden of showing (1) a reasonable basis for noncompliance
within the time specified, and (2) good faith.”

Steward v. City

of New York, No. 04-CV-1508 CBA RML, 2007 WL 2693667, at *5
(E.D.N.Y. Sept. 10, 2007).

The question of what constitutes

“excusable neglect” is “at bottom an equitable one, taking account

of all relevant circumstances surrounding the party’s omission,’
including prejudice to the other party, the reason for the delay,
its duration, and whether the movant acted in good faith.”

Id.

quoting Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd., 507 U.S.
380, 395 (1993).

As the Supreme Court explained in Pioneer,

excusable neglect under Rule 6(b) “is a somewhat ‘elastic concept’
and is not limited strictly to omissions caused by circumstances
beyond the control of the movant.”
Plaintiff’s

counsel

filed

a

Id. at 391-92.
second

motion

to

substitute

Maryrose Wengert and Earl G. Wengert as co-executors for defendant
Nolan Wengert pursuant to Rule 25 on October 6, 2018.
#75.

See Docket

The motion was duly served on Maryrose and Earl Wengert on

October 10, 2018.

See Docket #79.

Taking into account all the

relevant circumstances, including the (1) lack of prejudice to the
City of Rochester which was always going to represent and indemnify
all of the defendants -- including Officer Wengert before he passed
away and now his Estate -- for any and all damages that may be
awarded the individual defendants; (2) the relatively brief delay
in serving the co-executors with the motion to substitute and (3)
the apparent good faith exhibited by plaintiff’s counsel in trying
to ascertain and serve the proper representatives of the estate,
I find it equitable and just to extend the time for plaintiff to
make the motion to substitute pursuant to Rule 25 to October 10,

2018, the date of service of the motion on Maryrose and Earl
Wengert.
Further, the non-jury trial in this matter shall commence on
February 4, 2019 at 9:30 a.m.

By separate letter, the Court will

notify counsel of a date for the final pretrial conference.
IT IS SO ORDERED.

__/s/ Jonathan W. Feldman_______
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated:

December 18, 2018
Rochester, New York