United States District Court, E.D. New York
KARIM HASSAN LAW GROUP, PLLC Attorney for Plaintiff By: Abdul
Karim Hassan, Esq.
MORRIS LLP Attorneys for Defendant By: Michael Tiliakos, Esq.
Evangelos Michailidis, Esq. Katelynn M. Gray, Esq.
MEMORANDUM AND ORDER
R. HURLEY, UNITES STATES DISTRICT JUDGE.
John Grapsas (“Plaintiff”) originally brought
this action against Defendant North Shore Market Place,
(“Defendant”) under the Fair Labor Standards Act,
29 U.S.C. § 291 et seq. (“FLSA”) and New
York Lab. Law §§ 191 and 193 for unpaid overtime
wages, failure to provide proper notices and statements,
liquidated damages, and attorneys' fees. (Compl. [DE 1]
¶¶ 1-3.) Presently before the Court is
Defendant's motion to dismiss for failure to substitute a
party pursuant to Fed.R.Civ.P. 25(a)(1) (“Rule
25(a)(1)”). For the reasons explained below, the motion
to dismiss is granted.
following facts are taken from the Parties' submissions
and the Complaint.
is engaged in the grocery/produce business and owns and
operates approximately six or more stores with several
hundred employees. (Compl. ¶¶ 9-10.) Plaintiff was
employed by Defendant from on or around June/July 2013 to on
or around January 29, 2016. (Id. ¶ 11.)
Plaintiff was a maintenance person and claims that from March
2014 through January 2016 he worked approximately eleven to
twelve hours a day, six days a week. (Id. ¶
14.) Plaintiff alleges that he was not paid any wages, let
alone overtime wages, for approximately 12 hours worked each
week (two hours per day for the hours from 4:00 a.m. to 6:00
a.m.). (Id. ¶ 14.) Plaintiff also claims that
in one of his roles working for Defendant he was required to
expend $25 to $30 a day for gas, for which Defendant failed
to reimburse Plaintiff in full. (Id. ¶ 15.)
3, 2017, Defendant filed a letter requesting a pre-motion
conference for a motion for summary judgment. Plaintiff filed
a letter the same day for his own motion for summary
judgment. At some time shortly thereafter, Defendant's
counsel learned of Plaintiff's passing and reached out to
Plaintiff's counsel by e-mail on May 8, 2017, to confirm.
(Ex. A to Def.'s Reply Mem. in Supp. [DE 36] at 1.)
Plaintiff's counsel replied stating that he had
“confirmed with the family that [Plaintiff] had passed
away. (Id.) On May 10, 2017, Defendant filed a
Suggestion of Death on the record. (Suggestion of Death [DE
27] at 1.) Defendant did not serve the Suggestion of Death on
any other person other than Plaintiff's Counsel via ECF.
(See id.) Defendant's counsel claims that she
did not know who else to serve as Plaintiff's
“successor” was never revealed and still has not
been identified. (Reply Mem. in Supp. at 2.) On May 11, 2017,
this Court denied both requests for pre-motion conferences
without prejudice and with the right to renew once an
appropriate substitution for Plaintiff was made.
August 21, 2017, Defendant filed a letter motion to dismiss
pursuant to Rule 25(a) for Plaintiff's failure to
substitute an appropriate person by the end of the 90 day
period, which expired on August 8, 2017. (Letter Motion to
Dismiss [DE 28] at 1.) On August 22, 2018, this Court ordered
the Plaintiff to file opposition papers on or before
September 22, 2017. Plaintiff failed to submit any
correspondence of any kind with the Court in response to the
Order. On October 17, 2017, Defendant again filed a motion to
dismiss in light of Plaintiff's failure to substitute an
appropriate party or reply. On October 23, 2017, the Court
entered an Order to Show Cause directing Plaintiff to show
cause in writing filed on or before November 10, 2017, why
the action should not be dismissed for failure to substitute
an appropriate party.
November 10, 2017, Plaintiff's counsel filed a letter
stating that “[o]rdinarily, we would not oppose
dismissal of the action in light of plaintiff's death.
However, we respectfully request the Court keep the stay in
place until defendant confirms that a related state court
case against plaintiff Grapsas by defendant's owner is
dismissed in light of plaintiff's death.” (Response
to Order to Show Cause [DE 31] at 1.) Plaintiff's counsel
specifically noted that after Plaintiff's death, the
plaintiff in the state court case sought to appoint a
fiduciary for Mr. Grapsas and that any such fiduciary would
most likely need to pursue this action as well. (Id.
November 13, 2016, the Court directed Defendant to file its
reply to Plaintiff's response to the Order to Show Cause.
Defendant replied on November 17, 2017, by, again, filing a
letter motion to dismiss. On December 4, 2017, the Court
entered an Order noting that while all of Defendant's
numerous motions to dismiss were filed in violation of the
Court's practice rules, the Court would entertain
Defendant's motion in its discretion given
Plaintiff's repeated failure to abide by the Court's
briefing schedule. The Court set an updated briefing schedule
requiring Plaintiff to reply by December 4, 2017. On December
3, 2017, Plaintiff filed a motion for a two-week extension of
time to file its opposition papers in order to “further
confer with the family of Mr. Grapsas-the deceased
Plaintiff.” (Letter Motion for Ext. [DE 33] at 1.) The
Court denied the requested extension in light of the fact
that the issue of substitution had been pending for almost
seven months, but granted a limited extension to December 8,
2017. Plaintiff filed his response on December 8, 2017, and
Defendant filed it reply in support on December 21, 2017.
Rule 25(a)(1), substitution of a party due to death for
a claim that is not extinguished may be done by court order.
However, “i]f the motion is not made within 90 days
after service of a statement noting the death, the action ...