The opinion of the court was delivered by: Cathy L. Waldor, U.S.M.J.
CHAMBERS OF MARTIN LUTHER KING COURTHOUSE CATHY L. WALDOR 50 WALNUT ST. UNITED STATES MAGISTRATE JUDGE ROOM 4040 NEWARK, NJ 07101 973-776-7862
Introduction This matter comes before the Court on Plaintiff's motion to substitute parties (Docket Entry No. 36, Ex. 1, the "Motion"), filed January 20, 2012, due to the passing of defendant Leslie Dawson ("Dawson"). The Motion seeks to substitute Earl W. Dawson, Sr. ("Earl Dawson") and Gail P. Dawson ("Gail Dawson") as defendants in their capacity as representatives of the estate of defendant Dawson. (Motion at 4-5). For the reason set forth below, the Motion is Granted in part, and Denied in part, without prejudice. The Court will permit Gail Dawson to be substituted as the representative of the estate of defendant Dawson. Plaintiff's request to add Earl Dawson is denied, without prejudice.
The instant action was filed on August 17, 2010. (Docket Entry No. 1, the "Complaint"). Plaintiff Richard Badillo ("Plaintiff") alleged that defendants Innocent Obuah, Leslie Dawson, and Elena Sung "abus[ed], restrain[ed], and seclud[ed]" Plaintiff, in violation of various state and federal laws. (Complaint at 2). This Motion relates only to defendant Dawson. Plaintiff states that "[d]efendant Dawson died on September 8, 2011. (Motion at 4). Plaintiff noticed the Court and opposing parties of the death of defendant Dawson on September 14, 2011. (Motion at 7). On October, 26, 2011, Plaintiff filed a motion to substitute Gail Dawson and Earl Dawson as representatives of defendant Dawson's estate. (Id.). This Motion was served on Earl and Gail Dawson by certified mail. (Id.). On November 15, 2011 Gail Dawson filed a letter with the Honorable Esther Salas, U.S.D.J., confirming the death of defendant Dawson and identifying herself as the administrator of Dawson's estate. (Id., Docket Entry No. 37, "Letter"). On December 26, 2011, this Court order Plaintiff to file a formal motion to substitute the estate of Dawson. (Motion at 7). On January 20, 2012 Plaintiff filed this Motion.
Fed. R. Civ. P. 25(a)(1) ("Rule") states that:
"If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties in the manner provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any judicial district.
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."
The threshold inquiry is whether the Motion was properly served on Gail and Earl Dawson. Rule 25, in relevant part, requires that "the motion ... shall be served ... upon persons not parties in the manner provided in Rule 4 for the service of a summons." FED. R. CIV. P. 25(a)(1). In other words, the persons who are not parties, but whom the movant seeks to make parties by substitution, need to be served pursuant to Rule 4, rather than using Rule 5 service. Here, Plaintiff indicates that the Motion was sent to Gail and Earl Dawson via Certified Mail. (Motion at 7). At this time, Plaintiff has not provided the Court with the proof service required by Rule 4. Gail Dawson, however, has written a letter to this Court making the representation that she is the administrator of defendant Dawson's estate and indicating she is a litigant in the above captioned matter. (Letter at 1). As such, this Court assumes that Gail Dawson has accepted service by way of certified mail. See Anderson v. Wade, No. 3:05-33, 2008 WL 873653, at *3 (W.D.N.C., March 26, 2008) (granting motion to substitute representative of the estate where executor made no objection and filed a similar response for substitution purposes.).
Furthermore, Plaintiff has indicated that the other parties to this litigation have been properly served pursuant to Rule 5. (Motion at 7). No objections to this Motion have been made. As such, service of this Motion, as it relates to all non-moving parties, is proper. Additionally, Rule 25 permits a motion to substitute "be made by any party or by the successors or representatives of the deceased party." FED. R. CIV. P. 25(a)(1) Here, Plaintiff moves to substitute Earl and Gail Dawson, as representatives of defendant Dawson's estate. As the Plaintiff clearly is a party to this litigation he has proper standing to make this Motion.
Next, the Motion alleges that both Gail Dawson and Earl Dawson are representatives of defendants Dawson's estate. (Motion at 7). Gail Dawson has submitted a letter indicating that she is the representative of defendant Dawson's estate. (Letter at 1). The Court is satisfied that Plaintiff has meet his burden under Rule 25 as it relates to the Motion to substitute Gail Dawson as a representative of the defendant Dawson's estate. As to Earl Dawson, however, Plaintiff has not illustrated that he is a representative of defendant Dawson's estate. Unlike Gail Dawson, Earl Dawson has not submitted anything to this Court to indicate that he is in fact a representative of the estate. As plaintiff has failed to carry his burden of illustrating that Earl Dawson is a "proper party" to substitute in this litigation, Plaintiff's Motion to substitute Earl Dawson as a representative of the defendant Dawson's estate is denied, without prejudice. To the extent Plaintiff can satisfy Rule 25, as it relates to substituting Earl Dawson as a proper party in his capacity to defendant Dawson's estate, Plaintiff may re-file his motion to substitute.
Finally, in order to grant a motion to substitute Gail Dawson as a representative to defendant Dawson's estate, the Court must consider if Plaintiff's claims survive defendant Dawson's passing. Plaintiff's Motion moves to assert claims pursuant to N.J.S.A. 2A:15-4, N.J.S.A. 30:4-24.2, and 42 U.S.C. § 1983 against defendant Dawson's estate. The Court will address each claim in turn.
Rule 25 conditions substitution on a "claim  not [being] thereby extinguished" by the decedent's death. Pursuant to 42 U.S.C. § 1988, state statutory law governs the disposition of issues such as the survival of claims after the death of a defendant. See Robertson v. Wegmann, 436 U.S. 584, 589-90 ...