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Macon v. Correctional Medical Care, Inc.

United States District Court, W.D. New York

July 30, 2015

DWAYNE O. MACON, Plaintiff,


MARIAN W. PAYSON, Magistrate Judge.

On March 23, 2012, plaintiff Dwayne O. Macon ("Macon") filed this lawsuit against various defendants pursuant to 42 U.S.C. § 1983 alleging civil rights violations arising from his incarceration in the Monroe County Jail. (Docket ## 1, 20). Currently pending before this Court is Macon's motion to substitute a party. (Docket # 59).


Macon seeks an order substituting the Estate of Paul Wheatley (the "Estate") as a defendant in place of Sergeant Wheatley ("Wheatley"), a defendant whose death was suggested upon the record on September 29, 2014. (Docket ## 55, 59-1 at ¶¶ 4-6). In support of his motion, Macon's attorney represented that "[d]ue notice of this motion has been given, in the manner provided for in Rule 5 of the Federal Rules of Civil Procedure, on all parties that have appeared in the action to date." (Docket # 59-1 at ¶ 8).

Several defendants, including Major Edward Krenzer, Wheatley, Captain Thomas, Lieutenant Kaiser, Corporal Fichter, Sergeant Sarkis, Deputy Mulligan, Corporal Speck, Deputy McCarthy (the "Deputy defendants"), opposed the motion on the grounds that it was untimely and had not been properly served upon the representative for the Estate. (Docket # 63). The Estate did not appear in the action or oppose the motion.

In reply, Macon requested that the Court grant an enlargement of his time to substitute a party pursuant to Rule 6 of the Federal Rules of Civil Procedure. (Docket # 64 at ¶¶ 3-4). Macon's attorney represented that the executor of the Estate, Jennifer Wheatley, had been served with the motion for substitution, but a certificate of service had not been provided. (Id. at ¶ 5). According to Macon's attorney, he served the papers upon Kenneth Kraus, Esq. ("Krause"), an attorney at Evans & Fox, LLP, on March 18, 2015. (Docket # 65 at 7). Macon's attorney stated that he had failed previously to serve the Estate because he wrongly assumed that the attorney for the Deputy defendants also represented the Estate. (Id. ).

On April 9, 2015, oral argument on the motion was held. (Docket # 73). The attorneys for Macon and the Deputy defendants appeared. (Id. ). No one appeared on behalf of the Estate. (Id. ). On April 13, 2015, the Court held a telephone conference with the parties to the action to discuss the motion to substitute. During that conference, the parties were directed to contact the firm of Evans & Fox, the purported attorneys for the Estate, to request that it advise this Court in writing whether it was authorized to accept service of the motion on behalf of the Estate and whether the Estate had a position on the motion.

By letter dated April 23, 2015, Kraus informed the Court that Evans & Fox represents Jennifer M. Wheatley, the executor of the Estate. He also stated that the law firm was not authorized to accept service of papers relating to this action. He further stated that his position on the pending motion for substitution was that it should not be granted. According to Kraus, he was first contacted by Macon's counsel Michael Cobbs, Esq. ("Cobbs") on January 9, 2015. Kraus provided Cobbs a copy of the Certificate of Appointment of Executor and requested that Cobbs provide him a summary of this lawsuit. According to Kraus, Cobbs never provided the summary. Kraus also stated that on March 19, 2015, he received an electronic communication from Cobbs, which attached a notice of motion, certificate of service and an attorney affirmation for the motion to substitute, each dated January 23, 2015. A few days later, on March 23, 2015, he received a written communication from Cobbs enclosing the same documents. On April 6, 2015, Kraus received a memorandum of law and attorney affirmation from Cobbs.

By letter dated April 23, 2015, Cobbs asserted, without citation to any legal authority, that because Kraus is the attorney of record for the Estate, "he is authorized and must accept service of motion papers on behalf of the [E]state and the executor under New York law." Further, Cobbs asserted that Kraus has neither voiced any objection to service nor advised Cobbs that he was not authorized to accept service.

The Court requested that Cobbs provide legal authority to support his assertion that, by virtue of Kraus's status as attorney for the Estate, Kraus was authorized and required to accept service on behalf of the Estate. By letter dated May 5, 2015, Cobbs asserted that Section 2103 of the New York Civil Practice Law and Rules authorizes the service of papers upon an attorney of a party in a pending action. Accordingly, Cobbs maintained, his service upon Kraus was effective service upon the Estate. Cobbs also requested that in the event the Court determines that service upon the Estate was defective, the pending motion be adjourned to allow Macon sufficient time to personally serve the executor of the Estate.


Pursuant to Rule 25 of the Federal Rules of Civil Procedure, "a motion to substitute... must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4." Fed.R.Civ.P. 25(a)(3). While Rule 5 authorizes various methods of service, including service upon the party's attorney, Rule 4 of the Federal Rules of Civil Procedure requires personal service through either delivery directly to the nonparty or its authorized agent, delivery to someone of suitable age at the nonparty's dwelling or by serving the nonparty in accordance with the relevant state law for serving a summons. See Fed.R.Civ.P. 4(e); 5(b).

New York law authorizes various ways to effect service of a summons, including (1) personal delivery; (2) delivery to a person of suitable age at an individual's dwelling or place of business; (3) delivery to a designated agent; (4) affixing the summons to the door of the dwelling or business place of the individual and mailing the summons to the individual's last known residence; (5) other means as ordered by the Court; or (6) mail with a returned acknowledgement of receipt. N.Y. C.P.L.R. §§ 308, 312-a. Although Section 2103 of the New York Civil Practice Law and Rules permits service upon a party's attorney, that provision does not authorize service of a summons in such manner. Lord Day & Lord, Barrett, Smith v. Broadwall Mgmt., Inc., 187 Misc.2d 518, 519 (N.Y. Sup. Ct. 2001) ("[a] summons cannot be served pursuant to CPLR 2103(b), which only allows service of papers on an attorney in an action that is already pending"), aff'd, 301 A.D.2d 362 (N.Y.App.Div. 2003). Thus, Macon's reliance on Section 2103 of the New York Civil Practice Law and Rules is misplaced.

Jennifer Wheatley, the Estate representative, is not a party to this action; thus, personal service of the motion for substitution upon Jennifer Wheatley was required. See Gothberg v. Town of Plainville, 305 F.R.D. 28, 31 (D. Conn. 2015) ("service of... the motion to substitute on the non-party sought to be substituted in a manner provided by Rule 4 is required in order to establish the court's personal jurisdiction over the non-party"); Crichlow v. Fischer, 2015 WL 678725, *5 (S.D.N.Y. 2015) ("[s]ervice of a motion to substitute on the government's attorney after the death of a correctional officer is not effective service on the estate of an officer, as a nonparty, in a civil rights action; ...

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