122 F.R.D. 160 | S.D.N.Y. | 1988
OPINION AND ORDER
Plaintiff, Molly Zeidman, brought this action on August 1, 1985, to recover under a no-fault insurance policy for injuries incurred in a motor vehicle accident. Plaintiff died on August 31, 1986. At present, there has been no substitution of a proper party to replace the now deceased Zeidman. Defendant General Accident Insurance Company (“General Accident”) now moves pursuant to Fed.R.Civ.P. 25(a)(1) to dismiss this action for failure to substitute a proper party within the applicable 90 day period. Plaintiff has crossmoved pursuant to Fed. R.Civ.P. 6(b)(2) to extend the time period for substitution on the grounds of excusable neglect.
FACTUAL BACKGROUND
In 1982, plaintiff was injured in a motor vehicle accident involving a truck owned by Cassone Bakery, Inc. Cassone Bakery was insured by General Accident under a no-fault insurance policy. Complaint ¶¶ 1-6. Pursuant to the New York State Insurance Law, plaintiff filed a no-fault application with General Accident for hospital, medical and insurance expenses incurred as a result of the accident, and plaintiff received $1,248.00 of a possible $50,000 recoverable under the policy.
Plaintiff failed to substitute another party for Molly Zeidman within 90 days of November 20, 1987, as required by Fed.R. Civ.P. 25(a)(1). General Accident then moved on June 2, 1988, to dismiss the complaint based on the failure to substitute parties pursuant to Rule 25(a)(1). On June 16, 1988, plaintiff crossmoved for enlargement of the time to substitute pursuant to Fed.R.Civ.P. 6(b)(2) and 25(a)(1). Doris Ehrlich was appointed administratrix for the plaintiff’s estate on June 16,1988. See Certificate of Administration attached as Exhibit to Ehrlich Affidavit. Plaintiff’s counsel now seek to substitute the administratrix, Doris Ehrlich, as plaintiff in this action.
DISCUSSION
Rule 25(a)(1) states: “If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties____ Unless the motion for substitution is made no later than 90 days after the death is suggested upon the record, ... the action shall be dismissed as to the deceased party.” Whether an action should be dismissed for failure to comply with the 90 day time limit lies within the sound discretion of the district court. See Fed.R.Civ.P. 25(a)(1) Advisory Committee’s Note (1964); see also Staggers v. Otto Gerdau Company, 359 F.2d 292, 296 (2d Cir.1966) (“It is [also] intended that the court shall have discretion to enlarge [or not enlarge] th[e substitution] period.”). In making this determination the. Court is mindful of the underlying purpose of Rule 25(a)(1) which is to allow flexibility in substitution. To effectuate this purpose, the rule should be liberally interpreted. Rende v. Kay, 415 F.2d 983, 986 (D.C.Cir.1969).
Rule 6(b)(2) works in conjunction with Rule 25(a)(1) to provide the intended flexibility in enlarging the time for substitution. Staggers, supra, 359 F.2d at 296; Yonofsky v. Wernick, 362 F.Supp. 1005, 1013 (S.D.N.Y.1973). Fed.R.Civ.P. 6(b)(2) allows a district court to enlarge the time limit imposed by the Federal Rules for completion of an act “upon motion made after the expiration of the specified period ... where the failure to act was the result of excusable neglect.” If the Rule 6(b)(2) motion is not granted, the “action must be dismissed for failure to comply with the ninety-day limitation of Rule 25(a)(1).” Id. The movant has the burden of showing that the failure to substitute within the 90 day period was the result of excusable neglect. Yonofsky, supra, 362 F.Supp. at 1012. The party moving for an extension must “demonstrate good faith and ... show ‘some reasonable basis for noncompliance within the time specified in [Rule 25(a)(1).]’ ” Yonofsky, id. at 1012 (quoting 4 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1165, at 622 (1969)). It is not sufficient to show that the delay “was due to simple inadvertence.” 4A C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1165, at 481 (1987).
In the present case, plaintiff’s counsel has failed to make an adequate showing of either good faith or excusable neglect with respect to the failure to move in a timely fashion for substitution of a proper party. There has been no showing of good faith on the part of plaintiff’s counsel in trying to comply with the 90 day period. Plaintiff's counsel did not even file with the surrogate’s court to obtain an administrator until 10 days after General Accident filed its motion to dismiss. Affidavit of Carole R. Moscowitz, Esq., in Opposition to Plaintiff’s Crossmotion, sworn to on June 30, 1988, at 6.
At the very least, due diligence would have required that plaintiff’s counsel commence the process of obtaining an estate representative immediately upon the service of defendant’s motion to dismiss. Plaintiff’s counsel’s attempts at securing substitute counsel and its inability to convince Doris Ehrlich to be appointed administratrix did not prevent it from applying to the surrogate’s court for the appointment of an administrator. In comparison, difficulty in appointing an administrator has only been found to warrant an extension of time under Rule 6(b) where there was also a prompt application for such an appointment. See Yonofsky v. Wernick, supra, 362 F.Supp. at 1013. Counsel’s allegations that it attempted to replace itself with Albert Einstein's counsel is not an excuse for failure to make timely appointment of an administrator. No reasonable basis for noncompliance has been proffered by plaintiff, and therefore plaintiff has failed to demonstrate excusable neglect.
The argument for not finding excusable neglect is strengthened in this case by the fact that plaintiff’s heirs were partially at fault in the failure to move timely to substitute parties. Doris Ehrlich’s reluctance to become the administratix and pursue this claim undoubtedly contributed to the prolonged delay. The administratrix, Doris Ehrlich, only agreed to become administratrix after being convinced that she might profit from Zeidman’s estate. See Plaintiff’s Memorandum of Law in Support of Motion for Enlargement of Time ¶ 11 (“[Doris Ehrlich] was extremely reluctant because she did not know if there was any possibility of recovering any compensation”). Since Zeidman’s heirs were the primary cause of the neglect, they are not entitled to the motion for enlargement.
Moreover, the resultant prejudice to defendant due to this delay and uncertainty surrounding this litigation strengthen the finding that the delay preceding this motion was inexcusable. See Al-Jundi v. Rockefeller, 88 F.R.D. 244, 247 (E.D.N.Y.1980). In determining that prejudice has occurred, the period of the delay is a relevant factor. Compare Staggers, supra, 359 F.2d at 296 (2 day delay was excusable neglect as no prejudice resulted) with Ashley v. Illinois Central Gulf Railroad, 98 F.R.D. 722, 724 (S.D.Miss.1984) (waiting until eighty-ninth day after the filing of a suggestion of death to file a motion to substitute as inexcusable neglect where prejudice to defendant existed). Additionally, prejudice can occur due to the unnecessary imposition of the burdens of prolonging litigation. Where there is no action in an underlying litigation for a prolonged period of time, the defendant is unduly burdened in several ways: his coun
In the case at bar an enlargement of time would result in prejudice to defendant.
The facts in the instant action do not warrant the granting of an extension of time to substitute parties. Plaintiff has failed to demonstrate either excusable neglect or good faith. Defendant should not be further prejudiced with the burdens of unnecessary litigation simply because plaintiffs heirs belatedly changed their minds and decided that they desire to prosecute this action.
CONCLUSION
In light of the above analysis, defendant General Accident’s motion to dismiss is granted and plaintiff’s motion to enlarge time is denied.
SO ORDERED.
. Plaintiff only received a small repayment initially because the parties are awaiting a determination by Medicare of plaintiffs eligibility for future Medicare benefits. Affidavit of Michael H. Singer, Esq. ("Singer Affidavit”), sworn to on July 7, 1988, ¶¶ 14-15.
. From 1985 until 1987, the case was in the discovery phase of the litigation. See Order, dated July 27, 1987, directing completion of discovery by October 30, 1987; see also, letter dated October 27, 1987 from defendant’s counsel to plaintiffs counsel (listing various letters from 1986 and 1987, requesting items of discovery and requesting further items be produced by the plaintiff which were still not supplied as of the date of said letter).
. Plaintiffs statement that irreparable harm will befall it if the motion to enlarge is not granted is misplaced. As stated above, the relevant inquiry is prejudice to defendant and not irreparable harm to the moving party.