Nationwide Property and Casualty Company v. Target Homes, Inc. et al

Filing 77

MEMORANDUM AND ORDER 1.Motion to Dismiss by Estate of Paul Gearhart (Incorrectly designated as Paul Gearhart) (Doc. 65) is DEEMED MOOT;2.Plaintiffs Motion for Substitution of Proper Party (Doc. 67) is GRANTED;3.The Estate of Paul Gearhart is to be su bstituted for deceased Paul Gearhart as Defendant in this case;4.The caption is to be amended accordingly;5.The Estate of Paul Gearhart is substituted as the proper party in all aspects of this action, including cross-claims.Signed by Honorable Richard P. Conaboy on 3/1/13. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NATIONWIDE PROPERTY AND CASUALTY
COMPANY a/s/o TALMADGE AND JULIA
LEWIS,

:
:CIVIL ACTION NO. 3:12-CV-525
:
:(JUDGE RICHARD P. CONABOY)
Plaintiff,
:
:
v.
:
:
TARGET HOMES, INC., S&T COOMBE,
:
INC., PATRICK GALLAGHER, PAUL
:
GEARHART AND EASTERN INSULATION
:
CORP., t/a, d/b/a, a/k/a EASTERN
:
CONTRACTOR SERVICES, LLC,
:
:
Defendants.
:
___________________________________________________________________
MEMORANDUM
Here we consider two motions pending before the Court: “Motion
to Dismiss by Estate of Paul Gearhart (Incorrectly designated as
Paul Gearhart)” (Doc. 65) and “Plaintiff’s Motion for Substitution
of Proper Party” (Doc. 67).

With the first motion, Estate of Paul

Gearhart asserts that Defendant Paul Gearhart was not properly
served and the Complaint must be dismissed as to Defendant Paul
Gearhart in that Plaintiff has failed to substitute a proper party
for Defendant Paul Gearhart (who was deceased at the time Plaintiff
filed this action) pursuant to Federal Rule of Civil Procedure
25(a)(1). (Doc. 65 at 4-5.)

With the second motion, Plaintiff

seeks to substitute Estate of Paul Gearhart as the proper party for
deceased Defendant Paul Gearhart.

(Doc. 67 at 1.)

I. Background
This action is a subrogation claim stemming from a fire at the

Tobyhanna, Pennsylvania, residence of Talmadge and Julia Lewis on
October 16, 2010.

(Doc. 65 at 1; Doc. 67 at 1.)

The property was

a newly constructed single family house insured by Plaintiff
Nationwide Property and Casualty Company.

(Id.)

Plaintiff filed the action on March 22, 2012.

(Doc. 1.)

Plaintiff alleges in part that “Paul Gearhart was negligent and in
breach of implied warranty of workmanlike quality in his sale,
build, and/or installation of a chimney system on the proprty.”
(Doc. 67-1 at 1.)

Plaintiff also alleges that Paul Gearhart’s

conduct was “directly and proximately the cause of the fire.”
(Doc. 67-1 at 2.)
An Affidavit of Service of Summons and Complaint on Paul
Gearhart was filed on April 16, 2012.
10).)

(Doc. 65 at 3 (citing Doc.

The Summons was served on April 16, 2012, at Defendant Paul

Gearhart’s family’s residence.

(Doc. 65 at at 4; Doc. 67-1 at 2.)

On June 4, 2012, Defendant Paul Gearhart’s Estate filed a
Suggestion of Death.

(Doc. 45.)

On June 14, 2012, “Answer to

Plaintiffs’ Complaint with Affirmative Defenses and Crossclaims of
Defendant, Estate of Paul Gearhart (Incorrectly designated as Paul
Gearhart)” was filed.

(Doc. 49.)

On December 13, 2012, “Motion to Dismiss by Estate of Paul
Gearhart (Incorrectly designated as Paul Gearhart)” was filed.
(Doc. 65.)

On December 28, 2012, “Plaintiff’s Motion for

Substitution of Proper Party” was filed.

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(Doc. 67.)

Both motions

are now fully briefed and ripe for disposition.
II. Discussion
Because allowance of the substitution requested would moot the
motion to dismiss, we will first address Plaintiff’s Motion for
Substitution of Proper Party (Doc. 67) filed pursuant to Federal
Rule of Civil Procedure 25.

For the reasons discussed below, we

conclude this motion is properly granted.
Federal Rule of Civil Procedure 25 addresses the Substitution
of Parties.

In pertinent part it provides the following:
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.

Fed. R. Civ. P. 25(a)(1).
Circuit Courts

differ on whether Rule 25(a)(1) requires that

the statement of death identify the representative or successor who
may be substituted as a party.

See, e.g., Unicorn Tales, Inc. v.

Banjeree, 138 F.3d 467 (2d Cir. 1998); McSurely v. McClellan, 753
F.2d 88, 98 (D.C. Cir. 1985).

The Third Circuit Court has not

addressed this issue.
Plaintiff cites McSurely in support of the argument that the
90 day time for filing a substitution motion has not yet begun to
run because Defendant’s suggestion of death was insufficient in

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that it did not name a representative or successor party.
67-1 at 3.)

(Doc.

Alternatively, Plaintiff asserts that, even if the

Suggestion of Death was properly filed, the Court should extend the
time limit and permit Plaintiff’s Motion for Substitution because
Rule 25(a)(1)’s time limit was not meant to act as a bar to
meritorious claims.

(Id. (citing Tatterson v. Koppers, Inc., 104

F.R.D. 19 (W.D. Pa. 1984)).)
We do not decide whether Rule 25(a)(1) requires identification
of a representative or successor.

Rather, if we were to assume

that Rule 25(a)(1) contains no inherent requirement that a
successor be identified, an extension of the 90 day period would be
appropriate in this case.
Federal Rule of Civil Procedure 6(b) provides that “[w]hen an
act may or must be done within a specified time, the court may, for
good cause, extend the time . . . on motion made after the time has
expired if the party failed to act because of excusable neglect.”
Fed. R. Civ. P. 6(b)(1)(B).

Tatterson notes that extensions of the

90 day time period in Rule 25(a)(1) should be liberally granted.
104 F.R.D. at 20 (citing Staggers v. Otto Gerdau Co., 359 F.2d 292,
296 (2d Cir. 1966); United States v. Miller Bros. Constr. Co., 505
F.2d 1031, 1035 (10th Cir. 1974)).

Tatterson also identifies

factors to be considered by the Court before allowing a
substitution following the 90 day period: prejudice to the other
party, good faith, and excusable neglect.

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104 F.R.D. at 20 (citing

Staggers, 359 F.2d at 296; National Equip. Rental v. Whitecraft
Unlimited, 75 F.R.D. 507, 510 (E.D.N.Y. 1977); Yonofsky v. Wernick,
362 F. Supp. 1005, 1012-15 (S.D.N.Y. 1973)).
Construing Plaintiff’s argument that an extension is proper in
this case as a request made pursuant to Rule 6(b), we conclude that
there is no evidence of bad faith and no exhibited or argued
prejudice to Defendant.

Plaintiff’s reliance on the assertion that

it “did not have a proper representative which it could designate
as a party” (Doc. 67-1 at 4), even if that reliance is misplaced,
can be considered excusable neglect.

Given the generally strong

preference that cases be decided on the merits, see, e.g., Medunic
v. Lederer, 533 F.2d 891, 893-94 (3d Cir. 1976), and the allegation
that Paul Gearhart’s conduct was “directly and proximately the
cause of the fire” (Doc. 67-1 at 2), we conclude the time period is
properly extended to allow Plaintiff’s substitution motion.
With this decision, Plaintiff is granted leave to substitute
the Estate of Paul Gearhart for deceased Paul Gearhart.

Therefore,

the “Motion to Dismiss by Estate of Paul Gearhart (Incorrectly
designated as Paul Gearhart)” (Doc. 65) is deemed moot.
III. Conclusion
For the reasons discussed above, “Motion to Dismiss by Estate
of Paul Gearhart (Incorrectly designated as Paul Gearhart)” (Doc.
65) is deemed moot and “Plaintiff’s Motion for Substitution of
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Proper Party” (Doc. 67) is granted.

An appropriate Order follows.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: March 1, 2013

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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NATIONWIDE PROPERTY AND CASUALTY
COMPANY a/s/o TALMADGE AND JULIA
LEWIS,

:
:CIVIL ACTION NO. 3:12-CV-525
:
:(JUDGE RICHARD P. CONABOY)
Plaintiff,
:
:
v.
:
:
TARGET HOMES, INC., S&T COOMBE,
:
INC., PATRICK GALLAGHER, PAUL
:
GEARHART AND EASTERN INSULATION
:
CORP., t/a, d/b/a, a/k/a EASTERN
:
CONTRACTOR SERVICES, LLC,
:
:
Defendants.
:
___________________________________________________________________
ORDER
AND NOW, THIS 1st

DAY OF MARCH 2013, IT IS HEREBY ORDERED

THAT:
1.

“Motion to Dismiss by Estate of Paul Gearhart
(Incorrectly designated as Paul Gearhart)” (Doc. 65) is
DEEMED MOOT;

2.

“Plaintiff’s Motion for Substitution of Proper Party”
(Doc. 67) is GRANTED;

3.

The Estate of Paul Gearhart is to be substituted for
deceased Paul Gearhart as Defendant in this case;

4.

The caption is to be amended accordingly;

5.

The Estate of Paul Gearhart is substituted as the proper
party in all aspects of this action, including crossclaims.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

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