109 F.R.D. 624 | S.D.N.Y. | 1986
OPINION AND ORDER
Plaintiff, Antoni Gronowicz (“Mr. Gronowicz”), died on October 16, 1985. Counsel for plaintiff moved (1) for an extension of time to file a motion to substitute a proper party for the deceased plaintiff; and (2) to substitute Mr. Gronowicz’s wife as plaintiff. Defendant has cross-moved to dismiss. The court reserves on counsel for plaintiff’s motions. Defendant’s motion is denied.
BACKGROUND
This diversity action was filed on July 9, 1984. The case involves contracts for a movie based on Mr. Granowicz’ book, God’s Broker.
1. Proper Party
Plaintiffs counsel asserts that Mrs. Gronowicz is a proper party to be substituted pursuant to Rule 25. The basis for this assertion is that Mrs. Gronowicz is named in Mr. Gronowicz’ will as his sole heir and executrix. Counsel has also indicated that the will has not been filed for probate nor has Mrs. Gronowicz been appointed as executrix. Affidavit of Lawrence W. Schilling Dated February 4, 1986 ¶ 6.
A distributee of an estate is a “proper party” under Rule 25(a) if the estate of the deceased has been distributed at the time the motion for substitution has been made. Ashley v. Illinois Central Gulf Railroad Co., 98 F.R.D. 722, 724 (S.D.Miss.1983); see McSurely v. McClellan, 753 F.2d 88, 99 (D.C.Cir.), cert. denied, — U.S. —, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985). An executrix is also a proper party. See Al-Jundi v. Rockefeller, 88 F.R.D. 244, 246 (W.D.N.Y.1980). Plaintiff’s counsel has not indicated whether the estate has been distributed but stated that Mrs. Gronowicz could be appointed as executrix if “necessary or advisable.” Thus, if the estate of Mr. Gronowicz has not been distributed and will not be distributed within 90 days, Mrs. Gronowicz should be appointed as executrix prior to being substituted pursuant to Rule 25.
For Mrs. Gronowicz to be substituted, she must either notify the court that the estate has been distributed without being filed for probate or she must become appointed executrix of Mr. Gronowicz’ estate. Should such distribution be made or Mrs. Gronowicz be appointed as executrix, the motion for substitution shall be granted. Under these circumstances, the court will reserve on counsel for plaintiff’s motion.
II. Time for Substitution
Defendant argues that since no proper party has moved to be substituted within the 90 day period for substitution required by Rule 25, the action must be dismissed. Although Mrs. Gronowicz may not have been a proper party at the time the motions were filed, this action need not be dismissed because the period for substitution has not run.
Rule 25 provides that the 90 period for substitution commences when “death is suggested upon the record by service of a statement of the fact of the death. Fed.R. Civ.P. 25(a). The court received a letter from defendant’s counsel dated October 21, 1985 and a letter dated October 22, 1985 from Mr. Gronowicz’ counsel.
The October 21 letter provides in relevant part:
We wrote plaintiff’s counsel last week ..., placing them on notice of our intention to seek sanctions. After that letter, plaintiff died. We understand that his death requires that the case be held in abeyance until an Executor or Administrator is appointed for plaintiff’s estate and determines whether to proceed with the case.
The October 22 letter provides in relevant part:
As we believe you are aware, our client Antoni Gronowicz, plaintiff in the captioned actions, died on Wednesday, October 16.
[W]e anticipate that as the cause of action survives his death, his estate will be substituted as plaintiff in the action. It will naturally take some time for the family to make appropriate arrangements and to have a representative appointed for Mr. Gronowicz’ estate. Once a representative has been appointed, we will confer with the representative and take appropriate action. We are mindful of the 90-day time limit provided by F.R. C.P. 25(a), and will make an appropriate request if additional time is needed.
While the letters do not satisfy the rule 25 requirements, the motion papers do. The 90 day period therefore commenced on January 21, 1986, the date that counsel for plaintiffs motions were filed.
To enable Mrs. Gronowicz to become a proper party under Rule 25, the notice discussed in Part I, supra, must be served on opposing counsel and filed within 90 days of this Opinion. Such a brief extension is warranted to “avoid the harsh and unfair results” under the former version of the rule. Al-Jundi, 88 F.R.D. at 247.
CONCLUSION
Pending notification by Mrs. Gronowicz regarding the distribution of the estate or her appointment as executrix, the court shall reserve decision on the motion for substitution. Defendant’s motion is denied.
SO ORDERED.
. Some of the details surrounding this controversial book may be gleaned from decisions in other litigation involving the book. In re Grand Jury Matter (Gronowicz), 764 F.2d 983 (3d Cir.1985) (en banc), cert. denied, —U.S. —, 106 S.Ct. 793, 88 L.Ed.2d 770 (1986).
. The letter was from Philip R. Bryce on the letterhead of Jacobson & Bailin. Plaintiff's present attorney's were substituted for Jacobson & Bailin and Mr. Bryce by Order dated January 17, 1986.
. Defendant contends that the motion for an extension can only be made by a "proper party" under Rule 25. The court need not address this issue because an extension to the 90 day period, Jones v. Siegfried Construction Co., 105 F.R.D. 491, 491-92 (W.D.N.Y.1984), as well as a substitution itself, Blair, 104 F.R.D. at 22, may be granted after the 90 day period has run.
. Defendant describes a number of acts on the part of plaintiff which he asserts prejudiced his defense and warrant the dismissal of the lawsuit. While these actions, if they occurred, may prejudice the defendant, these actions have no relationship to a delay in filing a motion for substitution.