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September 4, 1990


The opinion of the court was delivered by: Elfvin, District Judge.


On August 2, 1990 this Court by Memorandum and Order granted the plaintiffs' motion to substitute John S. Keller, Commissioner of Finance of Orange County, as the Administrator of the Estate of John Monahan, Deceased, in the place and stead of defendant John Monahan. Sub silentio but by necessary implication, said Order denied the motion made on behalf of defendant Monahan to dismiss the action as to him on the ground that the plaintiffs had failed to observe the temporal parameters of Rule 25(a)(1) of the Federal Rules of Civil Procedure.

Mr. Keller, represented by the attorney who had represented Monahan during his lifetime and Monahan's daughter in her opposition to the appointment of an administrator ad litem, now has asked this Court to state that said Order involves a controlling question or questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal therefrom may materially advance the ultimate disposition of this long-pending litigation.

Although the rule contemplates that such statements by a court shall be written — that is, embodied — in the order from which an immediate appeal is sought, it long has been settled in the Second Circuit — Brown v. Bullock, 294 F.2d 415 (1961); Sperry Rand Corp. v. Bell Telephone Laboratories, Inc., 272 F.2d 29 (1959); Mueller v. Rayon Consultants, Incorporated, 271 F.2d 591 (1959) — and since 1967 generally that the 10-day period for applying to the appellate court for the entertainment of an appeal from an interlocutory order may run from the date of the amendment or resettlement of a district court's order so as to include therein the requested 28 U.S.C. § 1292(b) statements. See, Rule 5(a) of the Rules of Appellate Procedure. Thus, while section 1292(b) still requires that such statement be "in writing in such order" — viz., the order from which the appeal is sought to be taken —, it can be embodied in an amended or resettled version thereof.

That an immediate appeal from this Court's granting of the plaintiffs' motion and denying of defendant Keller's motion may materially advance this litigation is patent given the current status of this lawsuit. The litigation has been ongoing for an exceedingly and unduly long time and had finally reached the point where this Court on December 14, 1989 set June 5, 1990 as the day certain for the start of what is projected as a jury trial of three or four months. Three of the four remaining defendants then — sequentially — moved to dismiss on the basis of each's qualified immunity. Due to such motions this Court on May 10, 1990 changed the trial-commencement date to July 10, 1990. Qualified immunity having been denied June 26, 1990 copies of such three defendants' notices of appeal were received July 3rd. On July 10th the trial date was tentatively shifted to August 7th although an earlier order (on July 5th) had stayed the trial pending dispositions of the appeals.

The order now sought to be appealed kept defendant Monahan's estate in the case but the litigation could not proceed due to the pending appeals. For the appellate court to consider also whether this Court's decision of August 2nd can be upheld would work no hurt to the progressing of the lawsuit. If such decision should be overturned and qualified immunity be accorded one or two or all three of the remaining defendants there will have been no wasting of this Court's time or efforts; only the plaintiffs (who have not been free of fault for the lengthy delays in bringing this case to trial) are damaged and, even then, only if the trial proves their cause to be meritorious. If this Court's ruling as to defendant Monahan's estate is overturned and its rulings as to all three of the other defendants similarly treated, doing so now rather than after a lengthy trial would be most saving of the time and efforts of all.

Further, this Court opines that its Order of August 2nd does involve controlling questions of law as to which there is substantial ground for difference of opinion. The ruling "strays" from the literality of Rule 25(a)(1) of the Federal Rules of Civil Procedure — albeit, along a path indicated by various judicial signposts.

The pertinent portion of Rule 25(a)(1) reads as follows:

  "Unless the motion for substitution [of the proper
  parties] is made not later than 90 days after the
  death [of a party] is suggested upon the record by
  service of a statement of the fact of death as
  provided herein for the service of the motion [to
  wit, as provided in Rules 4 and 5], the action
  shall be dismissed as to the deceased party."

The present rule stems from a 1963 amendment. Theretofore it had provided a rigid two-year post-death period during which — and only during which — the substitution could be made despite excusable neglect on the party wishing to bring it about. See Anderson v. Yungkau, 329 U.S. 482, 67 S.Ct. 428, 91 L.Ed. 436 (1947); Starnes v. Pennsylvania Railroad Company, 295 F.2d 704 (2d Cir. 1961), cert. denied, 369 U.S. 813, 82 S.Ct. 688, 7 L.Ed.2d 612 (1962); Report of Judicial Conference, 31 F.R.D. 638-639. The pre-1963 inflexibility had been emphasized by the express exception of the time for moving to substitute from the enlargements allowed to be granted under Rule 6(b). This exception also was deleted in 1963. This Court noted in an earlier decision in this case the following:

  "It has been repeatedly stated and held that the
  reason rule 25(a) was amended to its current form
  in 1963 was to avoid the harsh and unfair results
  that the former inflexible version of rule 25
  occasionally mandated. See,e.g., Advisory Committee
  Note to rule 25; Roscoe v. Roscoe, 379 F.2d 94, 99
  (D.C. Cir. 1967). `[T]he 90-day period was not
  intended to act as a bar to otherwise meritorious
  actions.' Staggers v. Otto Gerdau Company,
  359 F.2d 292, 296 (2d Cir. 1966). Adoption of the Rende [v.
  Kay, 415 F.2d 983 (D.C. Cir. 1969)] rule would, on
  the facts of this case, promote this remedial
  flexibility. See, National Equipment Rental v.
  Whitecraft Unlimited, 75 F.R.D. 507 (E.D.N Y
  1977)." Al-Jundi v. Rockefeller, 88 F.R.D. 244,
  247 (W.D. N.Y. 1980).

Rockefeller's estate's motion to dismiss for failure to substitute timely was denied. Id., at 248. Subsequently, this Court granted a motion by the substituted Estate of Rockefeller to dismiss the lawsuit as to it because Rockefeller as the Governor of the State of New York was clothed with qualified immunity and such dismissal was upheld on appeal. Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060 (2d Cir. 1989). The appellate court merely noted in passing that, "[d]uring the pendency of the action, the Estate was substituted `in the place and stead of defendant Rockefeller.' Al-Jundi v. Rockefeller, 88 F.R.D. 244, 245 (W.D.N.Y. 1980)."

This Court in the 1980 decision was primarily concerned with whether the motion to substitute the estate had been timely made and, if it had not been, whether excusable neglect justified an enlargement pursuant to Fed.R.Civ.P. rule 6(b). While it was found that there had been such neglect, it had been found that there had not been any showing of prejudice in or to the administration of the estate or the distribution of its assets. See Anderson v. Yungkau, supra, 329 U.S. at 485-486, 67 S.Ct. at 430-431.

The equally-relied upon support for the 1980 decision was that the suggestion or statement of the fact of death was insufficient in that it "did not list the names of the executors of Rockefeller's estate, although this information should have been readily available to Stewart," the attorney who had represented defendant Rockefeller during his lifetime and who filed the motion to dismiss as to him and his estate due to the plaintiffs' non-compliance with Rule 25(a)(1). Al-Jundi v. Rockefeller, supra, at 246-247. Rende v. Kay, supra, was cited and relied upon. In that case, brought to recover for personal injuries caused by an automobile accident, the defendant driver had died after the action had commenced. The defendant's attorney of record made the suggestion of death in court and with notice. Subsequently and in his own name he moved to dismiss the case as to the decedent because the plaintiffs had not moved to substitute. Thereupon, the plaintiffs moved to substitute and for a Rule 6(b) enlargement, asserting that the ...

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