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
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.
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
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 ...