United States District Court, S.D. New York
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE.
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).
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.
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.
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.
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),
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
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.)
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.)
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.
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. ¶¶
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