Klein v. City of Portland, Oregon et al

Filing 69

Findings & Recommendation - Defendants' motion 54 to dismiss should be DENIED, Klein's motion 58 for extension of time should be DENIED as moot, Klein's motion 62 to substitute Patricia Zylawy, as personal representative of Mark Zyl awy's estate, for Mark Zylawy should be GRANTED. Objections to the Findings and Recommendation are due by 6/16/2009. If a party files objections another party may file a response to those objections within fourteen days of the filing date of the objections. Signed on 6/1/09 by Magistrate Judge John V. Acosta. (peg)

IN T H E UNITED STATES DISTRICT COURT F O R T H E DISTRICT OF OREGON

CAREY KLEIN, Plaintiff,

CV.07-1088-AC FINDINGS A N D RECOMMENDATION

v.
CITY OF PORTLAND, OREGON, and OFFICER M A R K Z Y L AW Y a n d O F F I C E R J E R R Y CIOETA, Defendants.

ACOSTA, Magistrate Judge:
Findings a n d Recommendation

P l a i n t i f f Carey Klein ("Klein") filed this action against the City o f Portland (the "City") and Officer Mark Zylawy (collectively "Defendants"), l asserting claims for battery and violations o f his

lPlaintiff also named Officer J e n y Cioeta as a defendant. However, Officer Cioeta w a s dismissed with prejudice from this action in September 2008 and is no longer a party to the action. P a g e -1- F I N D I N G S A N D R E C O M M E N D A T I O N
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constitutional rights to be free from unreasonable seizure and t o free speech based on Officer Zylawy's forcefully pushing Klein to the ground after he had been escorted from the scene o f a political protest he had b e e n videotaping. Presently before the court are Defendants' motion to dismiss K l e i n ' s claims against Officer Zylawy, and K l e i n ' s m o t i o n for extension o f time to file a motion to substitute a party and motion to substitute Patricia Zylawy, the personal representative o f the state o f Mark Zylawy, as the proper defendant i n place o f Officer Zylawy. For the reasons set forth below, the court recommends denying Defendants' m o t i o n to dismiss, denying K l e i n ' s m o t i o n for extension o f time as moot, and granting K l e i n ' s motion for substitution o f party.
Background

Klein filed this action in state court o n June 25, 2007, and Defendants timely removed the action to this couti. Officer Zylawy was killed in a motor vehicle accident on Janu81Y 27, 2008. James G. Rice, attorney for Defendants, advised Benjamin Haile, K l e i n ' s attomey, o f Officer Zylawy's death in early Februmy 2008, and, o n February 1 8 , 2 0 0 8 , Haile expressed his sympathies to Rice in an email. (Rice. Decl.
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2, Ex. I at 1.)

O n May 2, 2008, Rice reminded Haile through email o ftheir conversations regarding Zylawy in which Rice advised Haile o f R i c e ' s need to comply with Federal Rule o f Civil Procedure 25 i n the event Klein decided not to dismiss Zylawy. Rice indicated that Haile had previously requested time t o discuss the issue w i t h Klein but had failed to subsequently respond to Rice. (Rice. Decl. Ex. I a t 2-3.) On September 9, 2008, Rice sent Haile a letter via first class mail confirming that he had informed Haile o f Officer Zylawy's death in February, 2008. (Rice. Dec!. read: Your unavailability at the telephone conference with Judge Acosta shOliened P a g e -2- F I N D I N G S A N D R E C O M M E N D A T I O N
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4, Ex. 2.) The letter

the process. I gave a summmy o f our recent discovely and reported that plaintiff has agreed to dismiss Officer Cioeta and I ' v e mailed you a voluntmy dismissal for us to sign and I will file w i t h the court. I informed the j u d g e that we have deposed the plaintiff, p l a i n t i f f s witness John Rotter and Officer J e n y Cioeta. I mentioned there are no pending depositions. The only other named defendant is Officer Zylawy and as I informed you back in February he was killed i n a motor vehicle accident on 27 January 2008. Judge Acosta asked us to confer o n the document dispute and see what we c a n r e s o l v e a m o n g ourselves. I m e n t i o n e d y o u have s e n t m e a l e t t e r o u t l i n i n g h o w p l a i n t i f f s initial request has been narrowed. I a m t o report to the Court with a status r e p o r t by e m a i l i n t w o w e e k s . I have looked into the tailored request and I suggest you call me. (Rice. Dec!. ~ 4, Ex. 2.) The parties appeared before the court o n Janumy 23, 2009, for oral argument o n Defendants' m o t i o n f o r p a r t i a l s u m m m y j u d g m e n t . A t oral argument, R i c e m e n t i o n e d O f f i c e r Z y l a w y ' s p a s s i n g and indicated that he would likely file a motion to dismiss the officer. Defendants filed the motion to d i s m i s s o n J a n u m y 2 8 , 2 0 0 9 . K l e i n f i l e d a m o t i o n f o r e x t e n s i o n o f t i m e to s u b s t i t u t e a p a r t y o n F e b m m y 1 0 , 2 0 0 9 , asking the court to extend the deadline for filing to May I I , 2009. Klein then filed his motion to substitute a party on April 13, 2009.
Legal Standard

F e d e r a l R u l e o f Civil P r o c e d u r e 2 5 ( a ) ( 1 ) provides: I f a party dies and the claim is not extinguished, the court may order substitution o f the proper party. A motion for substitution may be made by any party or b y the decedent's successor or representative. I f t h e motion is not made within 90 days after service o f a statement noting the death, the action by or against the decedent must be dismissed. A statement noting the death must be served o n pmties in accordance with the requirements o f Rule 5. FED. R. CIY. P. 25(a)(3)(2009). Under Rule 5(b), service may be accomplished on a pmiy P a g e -3- F I N D I N G S A N D R E C O M M E N D A T I O N
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represented by a n attomey b y mailing (or emailing i f consented to in writing) the p a r ty 's attorney. The statement must also be filed with the COUtt. See FED. R. ClV. P. 5(d)(2009)("Any paper after the complaint that is required to be served - together with a certificate o f service - must be filed w i t h i n a reasonable t i m e a f t e r service.")
Discussion
A . D e f e n d a n t s ' M o t i o n to D i s m i s s O f f i c e r Z y l a w y

Defendants move t o dismiss Officer Zylawy under the provisions o f Rule 25 arguing that Klein did not file a motion to substitute a party for the officer within ninety days after receiving notice o f his death in the September 9, 2008, letter (the "Letter"). Klein argues that the Letter was n o t a proper statement o f death under Rule 25 for three reasons: 1) the Letter discusses issues other than the death o f Officer Zylawy; 2) the Letter was n o t filed w i t h the court; and 3) the Letter lacked i n f o r m a t i o n a b o u t t h e p e r s o n a l r e p r e s e n t a t i v e o f O f f i c e r Z y l a w y ' s estate. Federal COUlts, including the N i n t h Circuit, have strictly construed the service and filing requirements o f Rule 25. I n B a r l o w v. Ground, 39 F.3d 231, 233 (9th Cir. 1994), the N i n t h Circuit held that Rule 25 required two affilmative steps to trigger the running o f the ninety-day period. "First, a party m u s t formally suggest the death o f the pmty upon the record. (citations omitted) Second, the suggesting party must serve other parties and nonpmty successors o f the deceased with the suggestion o f death. . . .',2 In the scenario where the deceased party is a defendant, the requirements are met by filing a copy o f the statement o f death with the COUtt, or electronically

2In Barlow, the N i n t h Circuit considered the version o f Rule 25 that was in effect i n 1994. The changes to Rule 25 in 2007 were stylistic only and did n o t alter the substance o f Rule 25. Accordingly, the decisions construing the pre-2007 version o f Rule 25 are equally applicable to the c u r r e n t version.

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entering i t into the c o m t record, a n d mailing a copy o f the suggestion o f death to the p l a i n t i f f s counsel i n accordance w i t h Rule 5. See F e d Deposit Ins. Corp. v. Cromwell Crossroads Associates,

L t d P ' s h i p , 480 F. Supp. 2 d 516, 526-27 (D. Conn. 2007); Dummar v. Lummis, No. 2:07-CY-459
JCM(PAL), 2007 WL 4623623, *3 (D. Nev. Dec. 26, 2007). There is n o dispute that t h e Letter w a s n o t filed with the c o m t o r electronically entered into t h e c o m t record. A c c o r d i n g l y , D e f e n d a n t s h a v e n o t c o m p l e t e d the t w o s t e p s r e q u i r e d u n d e r R u l e 2 5 , t h e n i n e t y - d a y p e r i o d h a s n o t b e e n t r i g g e r e d , a n d D e f e n d a n t s ' m o t i o n t o d i s m i s s for f a i l i n g t o file a m o t i o n t o s u b s t i t u t e i s p r e m a t u r e . D e f e n d a n t s a r g u e t h a t t h e p u r p o s e o f f i l i n g t h e s t a t e m e n t o f d e a t h , as w e l l as a c e r t i f i c a t e o f s e r v i c e o f t h e statement, is to e s t a b l i s h a record t h a t t h e o p p o s i n g p a r t y h a d a c t u a l k n o w l e d g e o f t h e i t e m served. T h e y t h e n a s s e l t t h a t b e c a u s e K l e i n k n e w o f Z y l a w y ' s d e a t h a s e a r l y a s F e b r u a r y 2 0 0 8 , t h e f i l i n g o f t h e s t a t e m e n t a n d c e r t i f i c a t e o f s e r v i c e w a s n o t r e q u i r e d u n d e r R u l e 25. T h i s a r g u m e n t h a s been considered and rejected. See Grandbouche v. Lovell, 913 F . 2 d 835, 836 ( l O t h Cir. 1 9 9 0 ) ( " T h e r u n n i n g o f the n i n e t y - d a y l i m i t a t i o n s p e r i o d u n d e r R u l e 2 5 ( a ) ( 1 ) i s n o t t r i g g e r e d u n l e s s a fOlmal suggestion o f death is made o n the record, regardless o f whether the pmties have knowledge o f a p a r t y ' s d e a t h . " ) ; C r o m w e l l Crossroads, 4 8 0 F . S u p p . 2 d a t 2 7 ( W h e t h e r or n o t the p l a i n t i f f h a d a c t u a l k n o w l e d g e o f d e f e n d a n t ' s d e a t h b e f o r e t h e f i l i n g o f the s t a t e m e n t n o t i n g d e a t h i s i r r e l e v a n t . ) . Additionally, i t w o u l d appear that the statement noting a p a r t y ' s death m u s t be more thall a m e r e m e n t i o n o f t h e death in a c o m t o r case-related document. See Grass Valley Terrace v. United

States, 6 9 Fed. CI. 506, 510 (Fed. CI. 2006)(one-line mention o f p a r t y ' s death i n v o l u m i n o u s reply
b r i e f filed with court did n o t satisfY Rule 25); Roberts v. Thompson, No. 93-1409, 1994 W L 242457, *1 (10th Cir. 1994)(counsel's reference to p a r t y ' s death during appeal o f summary j u d g m e n t did

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not trigger the need to file a motion to substitute); Grandbollche, 913 F.2d a t 836-37 (citing various cases where court order noting death and mailed to parties, statement made o n record during discovery conference, and letter from attorney notifYing court o f p a r t y ' s death were insufficient to trigger the limitation period under Rule 25)(citations omitted); A c r i v. I n t 'I A s s 'n oflvlachinists a n d Aerospace Workers, 595 F. Supp. 326, 330 (N.D. Cal 1984)(incidental mention o f death i n answers to interrogatories not suggestion o f death under Rule 25). Defendants' mention o f Zylawy's death in the Letter, w h i c h also discussed discovery issues, also appears to be insufficient to trigger the n i n e t y - d a y t i m e period. Finally, the court acknowledges the split o f authority on the question o fwhether the statement noting the death must identifY the successor or representative who may be substituted for the decedent and declines the opportunity to address the issue at this time. Compare Rende v. Kay, 415 F.2d 983, 986 (D.C. Cir. 1969)(suggestion o f death must identifY the representative or successor o f a n estate) a n d Dummar, 2007 W L 4623623 at *3 (citing cases which held that a valid suggestion o f death must identifY the successor or representative to be substituted for the decedent) with Unicorn Tales, Inc. v. Baneljee, 138 F.3d 467, 470 (2nd Cir. 1998)(Rule 25 does n o t require a party to identifY the successor or legal representative in the statement) a n d George v. United States, 208 F.R.D. 29, 31-32 (D. Conn. 2 0 0 l ) ( d i s c u s s i n g cases which held that suggestion o f death was not defective because the representative or successor for a deceased p a t i y was n o t named and holding that where the party filing the suggestion o f death had no notice o f the pending appointment o f personal representative, the failure to name the personal representative did n o t prevent compliance w i t h Rule 25). Because the court finds that Defendants' failure to file or serve a formal statement o f d e a t h with t h e c o u r t p r e v e n t e d t h e triggering o f t h e 90-day period, t h e q u e s t i o n o f w h e t h e r Page -6- FINDINGS AND RECOMMENDATION {SIB}

Defendants' statement was also deficient under Rule 25 for n o t including the name o f the proper s u b s t i t u t e is n o t o u t c o m e d e t e r m i n a t i v e . Defendants' failure to file a copy o f the Letter with the court violates the express provisions o f Rule 25. The ninety-day time period was n o t triggered by the mailing o f the Letter to K l e i n ' s counsel. Defendants' motion to dismiss the claims against Officer Zylawy, which is based o n the expiration o f the ninety-day time period, is premature and should be denied. 3 B. K l e i n ' s Motion for Extension o f Time Klein requests an extension o f time to file a motion to substitute a party for Officer Zylawy. Because the court finds that Defendants failed to comply w i t h Rule 25 and, therefore, failed to trigger the ninety-day t i m e period, K l e i n ' s request t o extend that deadline is moot and should be denied.
C. K l e i n ' s M o t i o n t o Substitute Party

Klein seeks to substitute Patricia Zylawy, i n h e r capacity as personal representative o f M a r k Z y l a w y ' s e s t a t e ! as the proper defendant in place o f Mark Zylawy. Defendants' only objection to the motion is that it is untimely. Based on the c o u l i ' s finding that the Letter was insufficient under Rule 25 and did n o t trigger the ninety-day time period, Defendant's objection is n o t well-taken. K l e i n ' s motion to substitute is timely and should be granted.
Conclusion

Defendants' motion (#54) to dismiss should be DENIED, K l e i n ' s motion (#58) for extension

3Because the court recommends denying Defendants' motion to dismiss, the cOUli denies as m o o t K l e i n ' s request for oral argmnent o n that motion. · P a t r i c i a Zylawy w a s a p p o i n t e d p e r s o n a l r e p r e s e n t a t i v e o f t h e e s t a t e o f M a r k Z y l a w y b y t h e Superior COUli o f Washington for Clark County o n April 10, 2009. Page -7- FINDINGS AND RECOMMENDATION
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of time should be DENIED as moot, and K l e i n ' s motion (#62) to substitute Patricia Zylawy, as personal representative o f Mark Zylawy's estate, for Mark Zylawy should be GRANTED. S c h e d u l i n g Order The above Findings and Recommendation will be refelTed to a United States District Judge for review. Objections, i f any, are due no later t h a n June 16,2009. I f no objections are filed, review o f the Findings and Recommendation will go under advisement on that date.
I f objections are filed, any party may file a response within foulieen days after the date the objections are filed. Review o f the Findings and Recommendation will go under advisement when the response i s due or filed, whichever date is earlier.

D A T E D t h i s 1 " d a y o f J u n e , 2009.

J O H N V. ACOSTA n i t e d States M a g i s t r a t e Judge

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