Butler v. Anderson (In Re C.R. Stone Concrete Contractors, Inc.)
462 B.R. 6
Bankr. D. Mass.2011Background
- Trustee moved to substitute the executor of decedent Richard Anderson under Rule 25(a); assent by some defendants.
- Anderson died November 17, 2010; deadlines were set by a Joint Motion and later extended.
- Trustee previously lost a motion to substitute for service deficiencies; a renewed motion was filed July 29, 2011.
- Core issue is whether Anderson’s death abates or survives under the Survivorship Statute for the asserted causes of action.
- Court grants substitution in part and denies in part; survival and dismissal rulings follow, with counts limited accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the claims survive death under the Survivorship Statute | Trustee: Counts I, II, III, IV, V, X, XI, XIV, XVII, XVIII survive | Krattenmacher: some counts do not survive as intangible or as against Anderson personally | Counts I, II, III, IV, V, X, XIV, XI, XVII, XVIII survive; XIX, XX do not; Count XII dismissed. |
| Timeliness and proper service of the Motion to Substitute | Trustee complied with deadline and service as per stipulation | Service was defective; untimely | Motion timely; service and Rule 25(a) requirements satisfied. |
| Whether the Survivorship Statute extends to intangible property and non-tangible torts | Survivorship includes goods and personal property, including intangibles | Intangibles not covered; only tangible property survives | Intangibles (e.g., goodwill, contracts) survive; Counts IV, X, XVII, XVIII survive. |
| Whether certain federal claims survive against a deceased defendant | Remedial nature of turnover, fraudulent transfer, and stay violations permits survival | Some claims are penal or do not survive | Counts I, II, III, XIV survive as remedial; Counts XII (equitable subordination) dismissed for pleading failure; Counts XII, XIX, XX addressed. |
| Discretion to substitute when survival is unclear or claims against decedent may be redirected | Ample pleading supports substitution to avoid inconsistency | Discretion favors denial if survival uncertain | Court may substitute to extent survival exists; otherwise dismissal as to decedent’s estate. |
Key Cases Cited
- Soares v. Brockton Credit Union, 107 F.3d 969 (1st Cir. 1997) (remedial nature of automatic stay and survival considerations noted by First Circuit)
- Curtis v. Herb Chambers I-95, Inc., 75 Mass.App.Ct. 662, 915 N.E.2d 1121 (Mass. App. Ct. 2009) (existence of intangible property like goodwill survives for certain torts)
- Bethlehem Fabricators v. H.D. Watts Co., 286 Mass. 556, 190 N.E.2d 828 (Mass. 1934) (damage to property includes intangible property under survivorship analysis)
- Keating v. Boston Elevated Ry. Co., 209 Mass. 278, 95 N.E. 840 (Mass. 1911) (damages to personal property require specific property; general impoverishment does not survive)
- In re Wills, 226 B.R. 374 (Bankr. E.D. Va. 1998) (survival analyses in bankruptcy; remedial vs. penal distinctions)
- In re McCabe, 571 F.3d 108 (1st Cir. 2009) (examines survival of claims within bankruptcy context)