United States District Court, E.D. New York
Thomas P. Mohen, Esq., Jonathan Mark Cader, Esq., Jonathan Temchin, Esq., Mark E. Spund, Esq., Davidoff Hutcher & Citron, Garden City, NY, for Plaintiff.
Kenneth J. DeMoura, Esq., DeMoura/Smith LLP, Boston, MA, for Defendant.
MEMORANDUM & ORDER
JOANNA SEYBERT, District Judge.
Before the Court is Plaintiff Robert English's ("Plaintiff's") motion to substitute Larry Lattanzi ("Lattanzi"), the Personal Representative of the Estate of Barbara Murphy-Lattanzi, as the defendant in this action. (Docket Entry 49.) Defendant Barbara Murphy-Lattanzi ("Defendant") passed away on March 3, 2014.
In this motion to substitute, Plaintiff also seeks to reinstate the parties' summary judgment motions. In addition, Defendant moves for reconsideration of the Court's June 2, 2014 Order extending the time to substitute a proper party under Federal Rule of Civil Procedure 25(a)(1). (Docket Entry 45.)
For the foregoing reasons, Plaintiff's motion to substitute is GRANTED and Defendant's motion for reconsideration is DENIED AS MOOT. The parties may refile summary judgment motions.
Because resolution of the pending motion does not require a detailed discussion of the facts and underlying allegations in this case, the Court will only provide a brief summary.
Plaintiff, a retired investor, commenced this action on August 21, 2012 against Defendant asserting claims for fraud, conversion, and breach of fiduciary duty. (Compl. ¶¶ 44-63.) In 1999, Plaintiff hired Defendant to help organize an investment vehicle known as the Jaspers Fund ("the Fund"). (Compl. ¶ 8.) Plaintiff eventually promoted Defendant to the position of Operations Manager for the Fund and granted her the power to sign checks and other instruments on the Fund's behalf. (Compl. ¶¶ 13, 15-16.) Plaintiff also trusted Defendant with the management of his personal financial affairs. (Compl. ¶ 19.) Plaintiff alleges that in approximately 2006, Defendant began secretly using Plaintiff's assets and the assets of The Fund for herself. (Compl. ¶24.)
Following the conclusion of discovery in this action, the parties filed competing summary judgment motions. (Docket Entries 35, 38.) On March 3, 2014, while the motions were pending, Defendant passed away and Defendant's attorney filed a Suggestion of Death of Defendant under Federal Rule of Civil Procedure 25(a). (Docket Entry 43.) However, the Suggestion of Death did not identify an executor or personal representative who could take Defendant's place in the litigation. On June 2, 2014, the Court granted Plaintiff an extension of time to move to substitute a proper party because, at that time, no one had been appointed to administer Defendant's estate. (See Pl.'s Ltr. Mot. for Ext. of Time, Docket Entry 44, at 2; Electronic Order, June 2, 2014.)
A petition for an adjudication of intestacy with respect to Defendant's estate and for the appointment of a personal representative was subsequently filed on June 30, 2014 in Massachusetts Probate and Family Court. (Cader Decl., Docket Entry 49, Ex. F.) The petition identified Larry Lattanzi as Defendant's widower. On August 14, 2014, the Massachusetts Probate and Family Court issued a Decree and Order appointing Lattanzi as the personal representative of Defendant's estate. (Cader Decl. Ex. G.) On August 29, 2014, Plaintiff filed the pending motion seeking to substitute Lattanzi as the defendant in this action in his capacity as the representative of Defendant's estate. (Pl.'s Mot., Docket Entry 49.) Lattanzi opposes Plaintiff's motion on several grounds.
I. Plaintiff's Motion to Substitute
A. Legal Standard
Federal Rule of Civil Procedure 25(a) governs the substitution of a party in the event of a ...