United States District Court, N.D. New York
March 24, 2015
TIMOTHY A. BARON, Plaintiff,
DICK MILLER, et al., Defendants.
FOR PLAINTIFF: OF COUNSEL:, TIMOTHY A. BARON, Pro Se, Apartment 3, Oneonta, NY.
FOR DEFENDANT MILLER:, LEMIRE JOHNSON, LLC, GREGG T. JOHNSON, ESQ., APRIL J. LAWS, ESQ., TIMOTHY J. HIGGINS, ESQ., BRADLEY J. STEVENS, ESQ., Malta, NY 12020.
FOR DEFENDANTS WEST AND LAKOMSKI: HON. ERIC T. SCHNEIDERMAN, CHRISTOPHER W. HALL, ESQ., Assistant Attorney General, New York State Attorney General, The Capitol, Albany, NY.
FOR DEFENDANT FOOTHILLS PERFORMING ARTS CENTER, INC.: CORRIGAN, McCOY & BUSH PLLC, SCOTT W. BUSH, ESQ., 220 Columbia Turnpike, Rensselaer, NY.
REPORT, RECOMMENDATION, AND ORDER
DAVID E. PEEBLES, Magistrate Judge.
Plaintiff Timothy A. Baron, an African American resident of the City of Oneonta, New York, and the owner of Nuphlo Entertainment, Inc., commenced this action on February 10, 2013, against the mayor the City of Oneonta, the operator of a local performing arts center, and two New York state troopers claiming the deprivation of his rights under assorted federal and international provisions. Dkt. No. 1. In his complaint, as amended, plaintiff claims that he was (1) denied the opportunity to rent space from defendant Foothills Performing Arts Center, Inc. ("Foothills") based upon his race; (2) arrested and subjected to the use of excessive force by defendants Timothy West, Jr., and Jacob Lakomski, two New York state troopers; and (3) otherwise harassed and discriminated against, also on the basis of race, by employees of the City of Oneonta, including Dick Miller, the City's former mayor. See generally Dkt. No. 76. As defendants, plaintiff has named Foothills, West, Lakomski, and Miller, who is sued both individually and in his official capacity as the City's mayor, and as president of the board of directors of Foothills. Id. at 2, 9.
On November 14, 2014, a notice was filed with the court advising that defendant Miller died on October 26, 2014. Dkt. No. 89. No effort has been undertaken by the plaintiff since the filing of that notice to substitute Miller's successor or representative as a defendant in his place.
Under Rule 25(d) of the Federal Rules of Civil Procedure, Russell Southard, Jr., who, the court has been advised, is currently defendant Miller's successor as Acting Mayor of the City of Oneonta, is automatically substituted in his place in his official capacity as the City's mayor, and the clerk will respectfully be directed to amend the court's records to reflect that fact. Fed.R.Civ.P. 25(d); Baker v. Pataki, 85 F.3d 919, 923 n.4 (2d Cir. 1996).
While Rule 25(d) controls the issue of substitution insofar as defendant Miller's official role as the City's mayor is concerned, it does not address substitution for defendant Miller in his capacity as president of the board of directors for Foothills. Nor does the rule address the substitution of the appropriate estate representative for defendant Miller in this action. Those matters are governed by Rule 25(a) of the Federal Rules of Civil Procedure, which provides, in relevant part, as follows:
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); Steward v. City of N.Y., No. 04-CV-1508, 2007 WL 2693667, at *2-3 (E.D.N.Y. Sept. 10, 2007). Under this rule, in the event a timely motion for substitution is not made, dismissal of any claim against a deceased defendant, other than a public officer sued solely in his official capacity, is required. See Steward, 2007 WL 2693667, at *3 ("Rule 25(a)(1) thus makes clear that, after a party's death is suggested on the record, a motion for substitution must be made within ninety days or the court will be compelled to dismiss the action with respect to that party.").
In this instance, more than ninety days have elapsed since the filing of notice of defendant Miller's death. During that time neither plaintiff nor any other party has moved to substitute another representative of defendant Foothills and/or the estate of defendant Miller. Accordingly, plaintiff's claims against defendant Miller individually and in his capacity as president of the board of directors for Foothills are subject to dismissal.
Based upon the foregoing, it is hereby
ORDERED, that Russell Southard, Jr., is hereby substituted as a defendant in this action, in place of Dick Miller, in his official capacity as Acting Mayor the City of Oneonta;
ORDERED that the clerk is respectfully directed to adjust the court's records in this case accordingly; and it is further
ORDERED that the short-form caption of this case shall be "Timothy Baron v. Russell Southard, Jr., in his official capacity as the Acting Mayor of the City of Oneonta, et al. "; and it is further respectfully
RECOMMENDED that plaintiff's claims against Dick Miller, in his official capacity as president of the board of directors of the Foothills Performing Art Center, Inc., and in his individual capacity, be DISMISSED, leaving only (1) Russell Southard, Jr., in his official capacity as Acting Mayor of the City of Oneonta; (2) Timothy West, Jr.; (3) Jacob Lakomski; and (4) the Foothills Performing Arts Center, Inc., as defendants in the action.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report.
FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.