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IN RE HAWES

October 15, 1996

Re: Slaydon Hawes et al.
v.
Johnson & Johnson et al.



The opinion of the court was delivered by: HEDGES

 Dear Counsel:

 This matter comes before me on plaintiffs' motion to substitute a party pursuant to Rule 25(a) due to the death of plaintiff Manohar Kadam (Kadam). I have considered the papers submitted in support of and in opposition to the motion. There was no oral argument. Rule 78.

 One of the original plaintiffs in this action, Kadam, died on August 15, 1995. *fn1" On September 1, 1995, Letters Testamentary were issued to his wife, Vanita Kadam (Mrs. Kadam), naming her as executor of the estate of Kadam. On the same date, plaintiffs' counsel filed a pleading in this Court which made reference to Kadam's death. Thereafter, on June 24, 1996, pursuant to Rule 25(a), Mrs. Kadam filed this motion for substitution.

 Defendants submitted a brief in opposition to this motion, asking this Court to deny the motion on four bases. First, defendants argued that the motion should be rejected because the 90 day time period provided in Rule 25(a)(1) expired. Second defendants asserted that Kadam's death prevented his estate from proving his claims. Third, even if it prevailed, defendants contended that Kadam's estate would recover nothing because the estate would have to tender back more money than it could obtain in this action. Fourth, according to defendants, plaintiff's claims for liquidated and punitive damages did not survive his death.

 I. TIMELINESS OF MOTION TO SUBSTITUTE A PARTY

 Rule 25(a) provides for the substitution of a party in the event of death. Specifically, the Rule states:

 
Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

 This Court cannot accept defendants' argument that the reference to Kadam's death in the September 1, 1995 pleading triggered the commencement of the 90 day time period. Under Rule 25(a), the time period for filing a motion for substitution begins only after a party's death is "formally suggested on the record by the filing and service of a written statement of the fact of death as provided in Rule 5 of the Federal Rules of Civil Procedure and Form 30." Blair v. Beech Aircraft Corp., 104 F.R.D. 21, 22 (W.D. Pa. 1984), aff'd, 787 F.2d 580 (3d Cir. 1986); see United States v. Miller Bros. Constr. Co., 505 F.2d 1031, 1034 (10th Cir. 1974); Mobil Oil Corp. v. Lefkowitz, 454 F. Supp. 59, 70 (S.D.N.Y. 1977) Actual knowledge of a party's death by all the parties is immaterial. See Miller Bros., 505 F.2d at 1034-35; Tolliver v. Leach, 126 F.R.D. 529, 530 (W.D. Mich. 1989). Moreover, Rule 25 neither states that a suggestion of death must be initiated nor provides a time frame for making such a suggestion. McKenna v. Pacific Rail Serv., 32 F.3d 820, 836 (3d Cir. 1994).

 In Blair, the Third Circuit affirmed the district court, which held that mere reference to a party's death in either court proceedings or pleadings is insufficient to trigger the 90 day time period for filing a Rule 25 (a) motion for substitution. 787 F.2d at 580; see Grandbouche v. Lovell, 913 F.2d 835, 836-37 (10th Cir. 1990); Kaldawy v. Gold Serv. Movers, Inc., 129 F.R.D. 475, 477 (S.D.N.Y. 1990). Here, none of the parties filed such a formal writing. The mere reference to the death of Kadam in plaintiffs' reply brief submitted in support of their class certification motion is insufficient to trigger the commencement of the 90 day time limit. In addition, the plaintiffs are not under any time constraints to make a formal suggestion of death. Accordingly, the 90 day period for substituting parties has not yet begun, as a formal suggestion of death, identifying the representative to be substituted, has not yet been filed.

 II. FUTILITY OF MOTION TO SUBSTITUTE A PARTY

 In the alternative, defendants contended that the motion was futile. I also find this argument unpersuasive. Defendants asserted that Kadam's estate could not prove that he was constructively discharged because the estate lacked sufficient competent evidence. On the other hand, plaintiffs claimed that there was ample evidence of a constructive discharge. At this time, discovery is not complete, and so I find it would be premature to make any rulings regarding the sufficiency of the proofs offered by plaintiffs.

 In addition, I will not entertain defendants' argument that the estate of Kadam could not recover anything even if it prevailed. As plaintiffs correctly asserted, there remain issues of law and fact on how much the estate could recover in this action. Accordingly, I will not ...


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