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Grapsas v. North Shore Farms Two, Ltd.

United States District Court, E.D. New York

February 28, 2018

JOHN GRAPSAS, Plaintiff,

          ABDUL KARIM HASSAN LAW GROUP, PLLC Attorney for Plaintiff By: Abdul Karim Hassan, Esq.

          DUANE MORRIS LLP Attorneys for Defendant By: Michael Tiliakos, Esq. Evangelos Michailidis, Esq. Katelynn M. Gray, Esq.




         Plaintiff-Decedent John Grapsas (“Plaintiff”) originally brought this action against Defendant North Shore Market Place, LTD[2] (“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.


         The following facts are taken from the Parties' submissions and the Complaint.

         Defendant 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.)

         On May 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.

         On 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.

         On 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. at 2.)

         On 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.


         Under Rule 25(a)(1), substitution of a party[3] 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 ...

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