LIANA REVOCK, as Executrix of the ESTATE of BARBARA WALTERS, Plaintiff, v. COWPET BAY WEST CONDOMINIUM ASSOCIATION; THE BOARD OF THE COWPET BAY WEST CONDOMINIUM ASSOCIATION; ED WARDWELL, MAX MARCOURT; BILL CANFIELD, ROSIE WELLS, SHARON KOEHLER, DOUG REBAK and HERB HORWITZ as Board members; MAX HARCOURT, in his personal capacity; LANCE TALKINGTON; ALFRED FELICE, ROBERT COKAYNE, and VINCENT VERDIRAMO, Defendants. JUDITH KROMENHOEK, Plaintiff, v. COWPET BAY WEST CONDOMINIUM ASSOCIATION; THE BOARD OF THE COWPET BAY WEST CONDOMINIUM ASSOCIATION; ED WARDWELL, MAX MARCOURT; BILL CANFIELD, ROSIE WELLS, SHARON KOEHLER, DOUG REBAK and HERB HORWITZ as Board members; MAX HARCOURT, in his personal capacity; LANCE TALKINGTON; ALFRED FELICE, ROBERT COKAYNE, and VINCENT VERDIRAMO, Defendants.
Case No. 3:12-cv-0024, Case No. 3:12-cv-0025
DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN
December 17, 2020
Robert A. Molloy, District Judge
BEFORE THE COURT are the motions of Liana Revock, as Executrix of the Estate of Barbara Wаlters, and Judith Kromenhoek to substitute deceased defendant Alfred Felice with the Estate of Alfred Felice. (Case No. 3:12-cv-24, ECF No. 336; Case No. 3:12-cv-25, ECF No. 341.) For the reasons outlined below, the Court will grant the motions to substitute.
I. FACTUAL AND PROCEDURAL BACKGROUND
Prior to her death, Barbara Walters (“Walters“) оwned a unit in the Cowpet Bay West Condominium complex on St. Thomas in the United States Virgin Islands (“Cowpet Bay West“). Judith Kromenhoek (“Kromenhoek“) also owns a unit in Cowpet Bay West. Cowpet Bay West is governed by the Cowpet Bay West Condominium Association Board (the “Condo Association Board“). An Internet web log, the Cowpet Bay Blog, is allegedly maintained by Cowpet Bay West resident Lance Talkington. The instant dispute arose out of a series of incidents related to Walters‘s and Kromenhoek‘s emotional suppоrt dogs, actions of the Condo Association Board, and comments posted on the Cowpet Bay Blog. Walters and Kromenhoek each filed complaints on April 9, 2012, against several defendants including Alfred Felice (“Felice“).1 Subsequently, on June 1, 2012, Attorney Ryan C. Meade, Attorney of record for Alfred Felice, filed a notice of death as to Alfred Felice. (Case No. 3:12-cv-24, ECF No. 29; Case No. 3:12-cv-25, ECF No. 28.)
On September 4, 2012, Walters and Kromenhoek each filed a motion to substitute Felice with his personal reprеsentative and/or successor in interest. On June 14, 2013, the Court denied the motion to substitute because Walters and Kromenhoek had not served any personal representative or successor in interest with the motion to substitute as required by
On March 7, 2014, the Court denied the second motion to substitute because Walters and Kromenhoek had not served any personal representative оr successor in interest with a statement noting Felice‘s death as required by
Subsequently, the Court entered judgment in favor of the Defendants in each case. Walters and Kromenhoek each appealed. On June 12, 2017, the Third Circuit issued a mandate reversing in part and vacating in part this Court‘s judgment in favor of the defendants and rеmanding this matter for further proceedings. The Third Circuit also directed this Court to determine in the first instance whether to permit substitution for Felice.2
On May 13, 2019, Kromenhoek filed the operative complaint in Case No. 3:12-cv-00025. On July 3, 2019, Liana Revock (“Revock“), as exeсutrix for Walters’ estate,3 filed the operative complaint in Case No. 3:12-cv-00024. In these complaints, Revock and Kromenhoek continue to allege various claims against Felice.
On April 24, 2020, Revock and Kromenhoek each filed a motion to substitute Felice with Rosemary Felice. (Case No. 3:12-cv-24, ECF No. 326; Case No. 3:12-cv-25, ECF No. 331.)
On October 7, 2020, Revock and Kromenhoek each filed a motion requesting that the Court rule on their motions to substitute Felice with either Rosemary Felice or the Estate of Alfred Felice. (Case No. 3:12-cv-24, ECF No. 332; Case No. 3:12-cv-25, ECF No. 337.) Attached to those motions is an August 25, 2020 Order issued by the Surrogate‘s Court of Nassau County, New York. (Case No. 3:12-cv-24, ECF No. 332-2; Case No. 3:12-cv-25, ECF No. 337-2.) That order appoints the Nassau County Public Administrator as the representative of the Estate of Alfred Felice. See id. at 2.
On November 3, 2020, the Court entered an Order dеnying Revock‘s and Kromenhoek‘s January 31, 2020, motions to substitute because they had not served the representative of the Estate of Alfred Felice as required by
On November 9, 2020, Revock and Kromenhoek each filed a motion to substitute Alfred Felice with the Estate of Alfred Felice. (Case No. 3:12-cv-24, ECF No. 336; Case No. 3:12-cv-25, ECF No. 341.) Thereafter, on November 13, 2020, Revock and Kromenhoek
On November 17, 2020, Revock and Kromenhoek each filed a supplement in support of their motions to substitute Alfred Felice with Rosemary Felice. (Case No. 3:12-cv-24, ECF No. 339; Case No. 3:12-cv-25, ECF No. 344.)
II. LEGAL STANDARD
(1) Substitution if the Claim Is Not Extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decеdent‘s successor or representative. 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 dismissed.
(2) Continuation Among the Remaining Parties. After a party‘s death, if the right sought to be enfоrced survives only to or against the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties. The death should be noted on the record.
(3) Service. A motion to substitute, together with a notice оf hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner. Service may be made in any judicial district.
“When a party to a lawsuit dies, the threshold consideration рursuant to
[U]ndеr certain circumstances a person may be a “successor” under Rule 25(a)(1) if she is (1) the primary beneficiary of an already distributed estate; (2) named in a will as the executor of the decedent‘s estate, even if the will is not probated; or (3) the primary beneficiary of an unprobated intestate estate which need not be probated.
Id. at 784-85. “Decisions on [a] motion for substitution are within the trial court‘s discretion.” McKenna v. Pac. Rail Serv., 32 F.3d 820, 836 (3d Cir. 1994).
III. ANALYSIS
In this Court‘s November 3, 2020 Order, the Court found no reason to disturb its June 14, 2013 finding that Revock‘s and Kromenhoek‘s claims against Felice survive his death. As such, the Court must determine only (1) whether the Estate of Alfred Felice is a proper party within the meaning of
First, the Court must determine whether the Estаte of Alfred Felice is a proper party to substitute for Felice. Significantly, “[i]n the typical case, the proper party [for substitution] would be ‘the representative of the decedent‘s estate who has been appointed under state lаw.‘” In re Baycol Prod. Litig., 616 F.3d at 788 (citations omitted). Here, Revock and Kromenhoek direct the Court to an August 25, 2020 Order issued by the Surrogate‘s Court of Nassau County, New York. (Case No. 3:12-cv-24, ECF No. 337-2; Case No. 3:12-cv-25, ECF No. 342-2.) That order appoints the Nassau County Public Administrator as the representative of the Estate of Alfred Felice. See id. at 2. As such, the Court is satisfied that the Estate of Alfred Felice, represented by the Nassau County Public Administrator, is a proper party to substitute for Alfred Felice.
Second, the Court must determine whether it has personal jurisdiction over thе Estate of Alfred Felice.
The appropriate provision of Rule 4 for serving individuals located in a judicial district of the United States is
Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual‘s dwelling or usual place of abode with sоmeone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
Here, Revock and Kromenhoek eaсh filed an affidavit of service, which was completed by Alan Feldman (“Feldman“). (Case No. 3:12-cv-24, ECF No. 338; Case No. 3:12-cv-25, ECF No. 343.) In his affidavit, Feldman avers that he personally served Brian Curran, the Nassau County Public Administrator, with a notice of death of Alfred Felice and the November 9, 2020 motions to substitute Felice with the Estate of Alfred Felice. Id. at 1. Significantly, under New York law, a public administrator is authorized to receive service of process in any proceeding in which the Surrogate‘s Court has ordered the public administrator to appear. See
Having concluded that Revock‘s and Kromenhoek‘s claims against Felice survive his death, that the Estate of Alfred Felice is a proper party within the meaning of
The premises considered, it is hereby
ORDERED that the November 9, 2020 motions to substitute the Estate of Alfred Felice for deceased defendant Alfred Felice, Case No. 3:12-cv-24, ECF No. 336; Case No. 3:12-cv-25, ECF No. 341, are GRANTED; and it is further
ORDERED that the April 24, 2020 motions to substitute Rosemary Felice for deceased defendant Alfred Felice, Case No. 3:12-cv-24, ECF No. 326; Case No. 3:12-cv-25, ECF No. 331, are MOOT.
Dated: December 17, 2020
/s/ Robert A. Molloy
ROBERT A. MOLLOY
District Judge