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Smith v. Thebaud

June 30, 2009

STEVEN SMITH, PLAINTIFF,
v.
FRANCOIS THEBAUD, M.D.; JEAN LEOPOLD EDWIN RENAUD, M.D.; ERIC DAVIS, M.D.; AZEEM KHAWAJA, M.D.; RHODINA WILLIAMS, M.D.; MOSES TAMBE, M.D.; DAVID GREGORY ELLIS, M.D.; AND JENNIFER MITCHELL, M.D., DEFENDANTS.



The opinion of the court was delivered by: Bloom, United States Magistrate Judge

ORDER

Plaintiff, Steven Smith, brings this action alleging that while he was an inmate at Arthur Kill Correctional Facility ("Arthur Kill"), defendant doctors were deliberately indifferent to his medical needs by failing to properly diagnose and treat his cancer in violation of his rights under 42 U.S.C. § 1983. On September 12, 2008, defendants' counsel filed a Suggestion of Death on the record: Dr. Francois Thebaud died on August 25, 2008. Plaintiff did not move to substitute another party for Dr. Thebaud within the 90 day time period provided by Federal Rule of Civil Procedure 25(a)(1). By motion dated April 17, 2009, plaintiff requests an extension of time and to substitute the Public Administrator of Suffolk County for Dr. Thebaud. Defendants oppose plaintiff's motions.*fn1 For the following reasons, plaintiff's motions are granted.

BACKGROUND

Plaintiff initiated this action pro se on July 28, 2006, alleging that defendants were deliberately indifferent to his medical needs by failing to properly diagnose and treat his cancer. Defendants, including Dr. Thebaud, answered plaintiff's complaint. On November 15, 2007, pro bono counsel appeared on plaintiff's behalf. Plaintiff, by counsel, filed an amended complaint, and thereafter, second and third amended complaints.*fn2

After almost two years of litigation, defendants' counsel informed the Court on July 14, 2008 that because of a conflict of interest, Dr. Thebaud was being certified for representation by outside counsel pursuant to N.Y. Public Officers Law § 17 and that he had been instructed to find an attorney. Document 51. However, on August 25, 2008, before retaining outside counsel, Dr. Thebaud died. On September 12, 2008, defendants' counsel filed a Suggestion of Death on the record pursuant to Fed. R. Civ. P. 25(a)(1).

Prior to the expiration of the 90 day period for substitution, the Court held several status conferences. The parties and the Court discussed problems concerning substitution for Dr. Thebaud. Plaintiff's counsel stated that it could not locate a proper party to substitute for Dr. Thebaud because he died intestate, without an estate, and that no representative could be appointed. See Document 106 at 23 (December 2, 2008 Conference Transcript); Document 107 at 18 (September 24, 2008 Conference Transcript). At two of these conferences, an attorney, James Calamis, participated. He stated on the record that he did not represent Dr. Thebaud but was the Thebaud family attorney. Calamis confirmed that "the [Thebaud] family was not taking any action either by way of probate or administration to have anybody appointed to Dr. Thebaud." Document 107 at 8 (September 24, 2008 Conference Transcript).

In support of the instant motions, plaintiff's counsel states that on April 15, 2009 he learned the Public Administrator of Suffolk County had been substituted for Dr. Thebaud on March 25, 2009 in Goris v. Breslin, No. 04-CV-05666 (E.D.N.Y.) (KAM)(LB).*fn3 Document 97 at 3. Accordingly, on April 17, 2009, plaintiff's counsel moved to extend the time and to substitute the Public Administrator of Suffolk County for Dr. Thebaud. Defendants oppose plaintiff's motions, and except for Dr. Thebaud, have moved for summary judgment. Defendants' motion for summary judgment is sub judice.

DISCUSSION

Plaintiff's motions raise close and troublesome issues. Federal Rule of Civil Procedure 25(a)(1) provides:

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.

Thus, if a motion for substitution is not made within the 90 day period following the service of a Suggestion of Death, the action must be dismissed against the decedent. Fed. R. Civ. P. 25(a)(1). "Notwithstanding the mandatory language in Rule 25(a), the district court has considerable discretion in addressing the timing of substitution in the event of the death of a party." Jones Inlet Marina, Inc. v. Inglima, 204 F.R.D. 238, 239 (E.D.N.Y. 2001). Here, the Office of the Attorney General of the State of New York filed a Suggestion of Death on September 12, 2008. Document 60. The 90 day period for substitution for Dr. Thebaud expired on December 11, 2008. Plaintiff's counsel did not file its motion to extend the deadline or for substitution until April 17, 2009, over four months after the expiration of the 90 day period.

Under Fed. R. Civ. P. 6(b), "[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." See Kernisant v. City of New York, 225 F.R.D. 422, 431 (E.D.N.Y. 2005) ("Federal Rule of Civil Procedure 6(b) is a rule of general application giving discretion to the trial courts to enlarge time limits either before or after they have expired.") (citing Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir.1988)) "Excusable neglect is intended and has proven to be quite elastic in its application. In essence it is an equitable concept that must take account of all relevant circumstances of the party's failure to act within the required time." 4B Wright & Miller, Federal Practice and Procedure: Civil 3d § 1165 at 533-34 (3d ed. 2002). "Rule 6(b)(2) works in conjunction with Rule 25(a)(1) to provide the intended flexibility in enlarging the time for substitution." Zeidman v. Gen. Accident Ins. Co., 122 F.R.D. 160, 161 (S.D.N.Y. 1988) (citation omitted).

The burden is on the movant to establish that the failure to timely act was the result of excusable neglect. Yonofsky v. Wernick, 362 F.Supp. 1005, 1012 (S.D.N.Y. 1973) "To demonstrate excusable neglect, the moving party has the burden of showing (1) a reasonable basis for noncompliance within the time specified, and (2) good faith." Steward v. City of New York, et al., No. 04-CV-1508, 2007 WL 2693667, at *5 (E.D.N.Y. Sept. 10, 2007). "The determination of whether a party's conduct constitutes 'excusable neglect' is an equitable one that requires a court to consider all relevant circumstances." Harp v. City of New York, No. 01 Civ. 6604, 2008 WL 2971702, at *2 (S.D.N.Y. July 31, 2008) (quoting In re Painewebber Ltd. Partnerships Litig., 147 F.3d 132, 135 (2d Cir. 1998)).

Here, plaintiff's counsel argues that it has proffered a reasonable good faith basis for plaintiff's noncompliance within the 90 day period. It hired a firm of licensed private investigators who conducted a thorough search of public records in Suffolk County and nationwide to locate assets and identify potential distributees of Dr. Thebaud, but came up empty handed. Plaintiff's counsel further argues that because Dr. Thebaud died intestate and without an estate, there was no good faith basis upon which to seek appointment of a representative for Dr. Thebaud's estate or to seek an extension of the 90 day period under Rule 25(a). See Pl. Memo at 6-7. Defendants' counsel responds that plaintiff has "failed to put forward a reasonable basis for failing to substitute within the 90 day ...


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