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Grant v. Witherspoon

United States District Court, S.D. New York

January 3, 2020

RONALD GRANT, Plaintiff,



         Now before the Court is plaintiff's motion dated December 10, 2019 (Dkt. No. 70), in which he seeks to substitute nonparties Alexander Witherspoon and John David Witherspoon as defendants in place of their late father John Witherspoon. For the reasons set forth below, plaintiff's motion will be denied, without prejudice, for lack of proper service under Fed.R.Civ.P. 25(a)(3).[1]


         Plaintiff Ronald Grant is the author of and owner of two copyrights in an autobiographical play. Compl. (Dkt. No. 1) ¶ 14. In 2015, he entered into an oral agreement with defendant Angela Robinson Witherspoon to make a short film based on the play's script. Id. ¶¶ 16-17. According to plaintiff, Ms. Witherspoon agreed "that Mr. Grant would retain editorial control over any resulting film," that she "would not screen any resulting film unless and until she received Mr. Grant's final approval," and that he "would have ownership of the film masters for the purposes of his review, comment, approval, and personal use." Id. ¶ 19.

         Plaintiff alleges that after shooting the film (in which plaintiff starred) Ms. Witherspoon "cut Mr. Grant out of the editing process," "hired her own editor," and then, in partnership with her husband John Witherspoon (sometimes known as John Weatherspoon) and his production company T Boyds Boy Productions (T Boyds), "began entering a version of the film (under the title Curtsy, Mister) into numerous film festivals, all without Mr. Grant's approval and against his express wishes." Compl. ¶ 2.

         Plaintiff filed this action on March 19, 2019, naming as defendants Ms. Witherspoon, Mr. Witherspoon, and T Boyds. He asserts claims of copyright infringement, breach of contract, violation of his right of publicity under New York and California law, intentional infliction of emotional distress, and conversion. Compl. ¶¶ 45-85.

         On or about October 29, 2019, defendant John Witherspoon died intestate in California, where he resided. Abrams Decl. (Dkt. No. 83-1) ¶ 3; see also Neil Genzlinger and Derick Bryson Taylor, John Witherspoon, Actor in ‘Friday' and Other Movies, Dies at 77, N.Y. Times (Oct. 30, 2019),

         On November 5, 2019, plaintiff filed a "Suggestion of Death" alerting the Court that Mr. Witherspoon had died. (Dkt. No. 54.) Plaintiff's Suggestion of Death did not identify any representative who could be substituted for Mr. Witherspoon. Nor, insofar as the record discloses, was the document served on any such representative, or on any nonparty.

         On November 14, 2019, plaintiff filed a letter addressed to the Hon. Paul G. Gardephe, United States District Judge, stating that he "expect[ed] to file a motion to substitute the Estate of John Witherspoon in for Defendant Witherspoon." (Dkt. No. 57.) The next day, counsel for Ms. Witherspoon and T Boyds filed a letter opposing plaintiff's anticipated motion to substitute, largely on the basis that plaintiff's claims against Mr. Witherspoon lacked merit. (Dkt. No. 58.)

         On November 26, 2019, Judge Gardephe held a conference "to discuss Defendants' basis for opposing Plaintiff's proposed motion to substitute - for Defendant John Witherspoon - the estate of John Witherspoon, given that John Witherspoon has died." (Dkt. No. 60.) On the same day, Judge Gardephe referred the case to me for general pre-trial management. (Dkt. No. 64.)

         On December 10, 2019, plaintiff filed his motion to substitute pursuant to Fed. Civ. P. 25(a). Reporting that Mr. Witherspoon died intestate, and that no probate proceedings have commenced in California, plaintiff does not name, or seek to substitute in, any administrator or other representative of Mr. Witherspoon's estate. Pl. Mem. (Dkt. No. 72) at 2-3. Instead, he seeks to substitute in Mr. Witherspoon's sons, Alexander Witherspoon and John David Witherspoon. Id. According to plaintiff, each of them - along with Ms. Witherspoon, as the decedent's surviving spouse - will ultimately inherit one third of Mr. Witherspoon's separate property under California law. Id. at 3. Therefore, plaintiff asserts, the sons are (or will be) "beneficiar[ies] of the decedent's estate," id. at 2 (quoting Smith v. Specialized Loan Servicing, LLC, 2017 WL 4050344, at *3 (S.D. Cal. Sept. 13, 2017)), and as such are "proper parties to substitute in the instant action." Id. at 2, 3.

         On December 23, 2019, defendants opposed plaintiff's motion, arguing (1) that a distributee of an estate is a "proper party" under Rule 25(a) only "if the estate of the deceased has been distributed at the time the motion for substitution has been made"; (2) that plaintiff "failed to serve John Witherspoon's successors or representatives" with the Suggestion of Death or the motion to substitute; and (3) that "to the extent John Witherspoon's sons are permitted to be substituted in as defendants," each should be named only in his capacity "as 'a Distributee of the Estate of John Witherspoon.'" Def. Mem. (Dkt. No. 83) at 1-5. Defendants also submitted the declaration of William L. Abrams, an attorney retained "to prepare a petition to administer the Estate of John Weatherspoon." Abrams Decl. ¶ 2. Attorney Abrams attests that his firm "is preparing a probate petition for the Estate which will be filed in Los Angeles County Superior Court," and that "[u]pon being appointed as administrator of the Estate, Angela Weatherspoon will be obligated to complete and deliver California Form DE-157 - Notice to Creditors - notifying potential creditors that she has begun the administration of the Estate." Id. ¶¶ 4, 7.

         On December 30, 2019, plaintiff filed a reply brief, conceding that he did not serve either his Suggestion of Death or his motion to substitute on Alexander Witherspoon and John David Witherspoon, but arguing that he "should not be deprived of the opportunity to name a party for substitution" merely "because the Estate of Defendant John Witherspoon ...

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