United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. JUDGE
Tammi Rea (“Plaintiff”) brought this Employee
Retirement Income Security Act of 1974 (“ERISA”)
claim against Defendants Mutual of Omaha Insurance Company,
Mutual of Omaha, Koike Aronson, Inc., and K.N. Aronson, Inc.
(“Defendants”). ECF No. 1. On September 27, 2017,
Defendants moved to dismiss Plaintiff's suit. ECF No. 21.
For the reasons stated below, Defendants' Motion to
Dismiss is GRANTED.
became an employee of defendant Koike Aronson on April 7,
2008. ECF No. 1 at 4. As part of her employment benefit
package, Plaintiff was to be covered by defendant Mutual of
Omaha's long-term disability policy if she became
disabled. Id. at 4-5. On March 2, 2010, Plaintiff
filed a claim for disability benefits under the policy.
Id. at 5. Defendant Mutual of Omaha Insurance Co.
paid benefits until January 24, 2013, when it denied the
claim. Id. On February 21, 2014, Mutual denied
Plaintiff's request for reconsideration of the denial of
January 28, 2016, Plaintiff initiated this lawsuit. ECF No.
1. On May 12, 2016, Mutual answered Plaintiff's
Complaint, and on May 16, 2016, Koike and Plaintiff entered
into a stipulation extending the time for Koike to answer to
June 12, 2016. ECF Nos. 4, 5, 11. On January 18, 2017, the
parties attended a Rule 26 Scheduling Conference before U.S.
Magistrate Judge Hugh Scott at which Plaintiff's attorney
reported that Plaintiff had passed away in October 2016. ECF
No. 16. Plaintiff's attorney reported that he had not yet
located an estate administrator, so the Court gave him an
additional 90-days to locate an administrator or to start an
action in Erie County Surrogate's Court. Id.
After the expiration of the 90-days, the Court directed
Plaintiff's counsel to file a formal suggestion of death
per Rule 25(a)(1) by April 28, 2017 and scheduled an
additional status conference for May 17, 2017. ECF No. 18.
Plaintiff's attorney failed to file a suggestion of death
or attend the May status conference, so the Court suggested
that Defendants' attorney proceed with motion practice
under Rule 25. ECF No. 19.
September 27, 2017, Defendants moved to dismiss
Plaintiff's suit under Rules 16, 25, 37, and 41 of the
Federal Rules of Civil Procedure. ECF No. 21. On October 30,
2017, Plaintiff's attorney filed an affirmation stating
that he attempted to contact some of Plaintiff's family
members “that [he had located] through social media
with very limited success.” ECF No. 23 at 1.
Additionally, he “checked with the Surrogate's
Court of Erie County and also with the Surrogate's Court
of Cattaraugus County where [Plaintiff] had resided and no
family member has commenced any type of petition for probate
or administration although it has been quite some time since
she passed away.” Id. at 2. He also
acknowledged that Plaintiff's “passing completely
change[d] the circumstances and leave no client and
essentially no estate of the client to pursue a claim as none
have been created by her family.” Id. at 3.
Rule 25, if a party dies, the court “may order
substitution of the proper party.” Fed.R.Civ.P.
25(a)(1). A motion for substitution may be made “by any
party or by the decedent's successor or
representative.” Id. 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
attorney has not complied with Rule 25 in substituting a
party after Plaintiff's death. First, there is no
indication from the record that Plaintiff served his October
2017 affirmation on Defendants' attorney, as mandated by
Rules 25 and 5. Second, Plaintiff's attorney's
October 2017 affirmation stating that Plaintiff was deceased
did not constitute a formal “statement noting the
death” for purposes of Rule 25. See Int'l.
Cablevision, Inc. v. Sykes, 172 F.R.D. 63, 66 (W.D.N.Y.
1997) (noting that a suggestion of death “is not
effective if made by counsel for the party who has
died”); Al-Jundi v. Estate of Rockefeller, 757
F.Supp. 206, 210 (W.D.N.Y. 1990) (“Death withdrew from
the attorney every iota of authorization he had to act for or
in [his client's behalf].”). Finally, even if the
affirmation constituted a valid suggestion of death and the
attorney properly served it, he did not make a motion for
substitution within 90 days after issuing his affirmation. As
of today, it has been more than 238 days since the attorney
filed the October 2017 affirmation.
to Defendants' suggestion, the Court cannot dismiss this
action based on Rule 25 alone. Because Plaintiff's
attorney never properly served a valid suggestion of death,
he never triggered the 90-day period during which he had to
serve a motion for substitution. See Sykes, 172
F.R.D. at 67 (“Since the letter did not constitute a
formal suggestion of death on the record pursuant to
Fed.R.Civ.P. 25(a), the ninety-day period for making a
substitution did not begin to run . . .”).
theory, then, Plaintiff may still move to substitute a party
even though he never served a suggestion of death.
See Advisory Committee Notes to Rule 25-1983
Amendment (“A motion to substitute may be made . . .
without awaiting the suggestion of death.”). However,
as Plaintiff's attorney conceded in his October 2017
affirmation, Plaintiff has no estate to speak of and her
attorney has not found a proper party to replace the original
Plaintiff. The only conclusion to draw from Plaintiff's
attorney's affirmation and his hundreds of days of
silence since then is that he has stopped trying to find a
substitute plaintiff. Consequently, there is no way forward
for this litigation. Accordingly, the Court grants
Defendants' Motion to Dismiss under Fed.R.Civ.P. 41(b)
for failure to prosecute.
“is well established that a district court has the
power to dismiss an action for failure to prosecute.”
Nita v. Conn. Dep't of Envtl. Prot., 16 F.3d
482, 485 (2d Cir. 1994). In dismissing a case under Rule
41(b), trial courts must consider five factors: 1) the
duration of the plaintiff's failure or non-compliance; 2)
whether the plaintiff had notice that such conduct would
result in dismissal; 3) whether prejudice to the defendants
is likely to result; 4) whether the court balanced its
interest in managing its docket against the plaintiff's
interest in receiving a fair chance to be heard; and 5)
whether the court adequately considered the efficacy of a
sanction less drastic than dismissal. Baffa v. Donaldson,
Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 63 (2d
Cir. 2000). No one factor is dispositive. Nita, 16
F.3d at 485.
above-referenced factors weigh in favor of Defendants.
Plaintiff's attorney failed to attend a status conference
and only contacted Defendants after they moved to dismiss the
case. Furthermore, he did not contest any of the arguments in
Defendants' Motion to Dismiss. As mentioned above,
Plaintiff's attorney has not tried to establish contact
with potential substitute parties for over 238 days. The
Court recognizes that Plaintiffs death placed her attorney in
a difficult position and understands if Plaintiff s attorney
believed he lacked the authority to make certain decisions in
this litigation on her behalf. Nonetheless, this does not
change the fact that “no sanction less than dismissal
will alleviate the prejudice to defendants of continuing to
keep this action open and the Court needs to avoid calendar
congestion and ensure an orderly and ...