Harding v. Canfield et al

Filing 33

DECISION & ORDER denying without prejudice 27 Motion to Substitute Party because the notice condition has not yet been satisfied. Signed by Hon. Marian W. Payson on 12/5/2019. Copy of this Decision & Order sent by First Class Mail to plaintiff Eric Harding on 12/6/2019 to his address of record. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
ERIC HARDING,
DECISION & ORDER
Plaintiff,
17-CV-6024W
v.
WESLEY CANFIELD, et al.,
Defendants.
_______________________________________

Pending before the Court is pro se plaintiff’s motion for substitution of parties
pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure. (Docket # 27). The motion
was prompted by defendants’ service upon plaintiff of a Notice of Suggestion of Death of
Wesley Canfield, one of the defendants. (See Docket # 26).
Although the Notice was served upon plaintiff, it was not served upon the
representative of the estate of Wesley Canfield. (Id.). The service provisions of Rule 25 have
been interpreted to require that a Suggestion of Death statement be served upon the decedent’s
representative or successor in order to be effective.1 See Young v. Patrice, 832 F. Supp. 721, 725
(S.D.N.Y. 1993) (“[t]he statement of death must be filed and served according to Rule 25, which
most courts (including this one) have interpreted to require at least the naming of the executors
of the decedent’s estate”) (collecting cases); see also Crichlow v. Fischer, 2015 WL 678725, *5
(S.D.N.Y. 2015) (denying motion for substitution because representative of decedent’s estate had

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Defendants’ response to plaintiff’s motion indicates that Kaye Canfield is the administrator of Wesley
Canfield’s estate. (See Docket # 32).

not been served). As such service has not been made, the Notice is ineffective, and the
ninety-day limit for filing a motion for substitution has not been triggered. Id. at 726.
In order in invoke the rights contemplated under Rule 25 – in plaintiff’s case, to
seek substitution of the administrator or executor of the estate of Wesley Canfield for the
individually-named Canfield, or in defendants’ case, to seek dismissal of the claims against
Canfield – a Notice of Suggestion of Death that names the proper parties must first be served on
the parties and personally served on the estate representative or administrator. Rule 25 permits
the Notice to be served by plaintiff, defendants or the decedent’s successor or representative.
Because the notice condition has not yet been satisfied, plaintiff’s motion for substitution
(Docket # 27) is DENIED without prejudice.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
December 5, 2019

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