United States District Court, D. New Jersey
MICHAEL A. HAMMER, Magistrate Judge.
This matter comes before the Court on the motion of plaintiff Victor Cuoco's ("Plaintiff") parents, Victor and Betty Cuoco ("movants"), to substitute themselves as plaintiffs pursuant to Federal Rule of Civil Procedure 25. See ECF No. 15-1. For the reasons herein, the motion to substitute is granted.
Plaintiff filed this action on July 31, 2013 in the United States District Court for the Southern District of New York. See Compl., ECF No. 1; Defendants' Palisades Collection, LLC and Pressler & Pressler, LLP, Joint Opposition to Plaintiff's Motion to Substitute Plaintiff Pursuant to Federal Rule of Civil Procedure 25 ("Def. Opp. Br.") at 1, ECF No. 20-2. The Complaint names Palisades Collection, LLC ("Palisades") and Pressler & Pressler, LP ("Pressler") (collectively "Defendants") as Defendants. See Compl., ECF No. 1. Plaintiff seeks both compensatory and punitive damages relating to violations of the FDCPA, negligence and recklessness, and invasion of privacy. See Compl., ECF No. 1 ¶¶ 1, 60, 68. Palisades filed an answer with affirmative defenses denying all liability on September 12, 2013. Def. Opp. Br., ECF No. 20 at 2. Pressler similarly filed an answer with affirmative defenses on September 13, 2013, denying all allegations. Id.
Plaintiff asserts that Palisades purchases "portfolios of allegedly defaulted debt, " and seeks to collect the debt for profit. Compl., ECF No. 1 ¶ 12. Plaintiff further asserts that in the course of its business, Palisades purchased a portfolio of Verizon debt allegedly owed by Plaintiff. Id . ¶ 13. Thereafter, Palisades secured the services of Pressler to assist in collecting the debt allegedly owed. Id . ¶ 14. Plaintiff contends that in or around 2007, Pressler brought a lawsuit against him on behalf of Palisades to recover the debt allegedly owed for his Verizon phone bill, namely $901.07. Id . ¶ 17. A default judgment was issued against the Plaintiff and was entered on January 24, 2008. Id . ¶ 19. Plaintiff contends that Defendants have repeatedly relied on harassing tactics to collect the debt. Id . ¶ 1. The alleged tactics used by the Defendants against the Plaintiff include threats of arrest, attempts to levy on the real property of Plaintiff's parents and on Plaintiff's personal bank account, threats of garnishment, and adding additional sums to the alleged debt. Id . Despite his claim that he did not owe the money, Plaintiff claims to have paid the debt. Id . ¶ 23. Defendants contend, however, that Plaintiff never provided or disclosed documentation suggesting that he paid the debt that was allegedly owed. See Def. Opp. Br. at 4, ECF No. 20.
Moreover, Plaintiff contends that even after settling the debt, Defendants continued to engage in a pattern of harassing collection tactics to recover more money. Compl., ECF No. 1 ¶¶ 24-30. On February 14, 2013, Pressler, acting on behalf of Palisades, sent Plaintiff an "information subpoena demanding information and threatening... that if he does not respond to the subpoena he could be arrested." Id . ¶ 31. This notice stated that Plaintiff owed $1, 300.84. Id . ¶ 33. Plaintiff contends that this money was not owed, and that the notice contains illegal interest and fees. Id . ¶¶ 34-37. On February 20, 2013, Defendants allegedly called the Plaintiff and, threatening arrest, demanded payment of the debt. Id . ¶ 40.
Plaintiff claims that Defendants' harassing tactics caused him to experience numerous health issues, including heart failure and anxiety. Id . ¶ 74. On September 27, 2013, Plaintiff died. See Memorandum of Law in Support of Motion to Substitute Plaintiff Pursuant to Federal Rule of Civil Procedure 25 ("Pl. Br."), ECF No. 15-1 at 1. On October 21, 2013, the parties agreed to a Consent Order to transfer venue from the Southern District of New York to the District of New Jersey. Id . On October 23, 2013, Plaintiff's attorney filed a suggestion of death on the record. Joseph Mauro Aff., ECF No. 8 ¶ 3. The next day, counsel for Pressler "transmitted correspondence to the assigned trial judge, The Honorable Laura Taylor Swain with reference to transfer of the instant action to the District Court of New Jersey." Def. Opp. Br., ECF No. 20 at 2. On October 31, 2013, The United States District Court for the District Of New Jersey received a Certified Copy of the Transfer Order. Id.
Movants, Plaintiff's parents, seek, under Rule 25, to substitute themselves as plaintiffs to continue the litigation. Id . Paul Mauro, Esq. entered an appearance for movants in order to substitute them as plaintiffs. Id . at 3. On December 27, 2013, movants, through their counsel Paul Mauro, moved to substitute under Rule 25. See Pl. Br., ECF No. 15. In support of their motion to substitute, both movants submitted affidavits confirming they are the Plaintiff's parents, that Plaintiff had no will, that he was not married and had no children, and that he resided with them. Affidavit in Support of Motion to Substitute Plaintiff ("Betty Cuoco Aff."), ECF. No. 15-2 ¶¶ 1-5; Affidavit in Support of Motion to Substitute Plaintiff ("Victor Cuoco Aff."), ECF No. 15-3 ¶¶ 1-5. Both Mr. and Mrs. Cuoco also state they are their son's next of kin and that they will be "the ultimate distributees of any assets obtained from the lawsuit." Id . ¶ 6.
Defendants filed a joint opposition brief on January 7, 2014. See Def. Opp. Br., ECF No. 20. Defendants contend that Plaintiff's FDCPA claim extinguished upon his death, the motion was not timely, and movants are improper substitutes under Rule 25. See id. Movants filed a Memorandum of Law in Reply to Defendants' Opposition to Motion to Substitute Plaintiff Pursuant to Federal Rule of Civil Procedure 25 ("Reply Br.") on January 28, 2014. ECF No. 29. On January 12, 2014, Betty and Victor Cuoco filed another suggestion of death on the record through their attorney, Paul Mauro, Esq. See Suggestion of Death of Plaintiff, ECF No. 28. Soon thereafter, on February 4, 2014, the movants submitted documentation from the State of New Jersey Monmouth County Surrogate's Court appointing movant, Betty Cuoco, as administrator of the estate of her son, who died intestate. See ECF No. 30.
Rule 25 states, in pertinent part, that:
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 decedent'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.
A court considering a Rule 25 motion must address three questions: "whether (1) the motion is timely; (2) the claims pled are extinguished; and (3) the person being substituted is a proper party." Veliz v. Cintas Corp., No. 03-1180 , 2008 WL 2811171, at *1 (N.D. Cal. July 17, 2008). The decision of whether to grant the motion for substitution is within the discretion of the trial court. McKenna v. P. Rail Serv. , 32 F.3d 820, 836 (3d Cir. 1994) (citing Fed.R.Civ.P. 25(a)). While the trial court does have the discretion to deny the motion, such a denial, without cause, is rare. See Saylor v. Bastedo , 623 F.2d 230, 237 (2d Cir. 1980) (noting that "it is difficult to imagine a case where discretion might properly be exercised to deny a motion to substitute for a deceased plaintiff made within the rule's time ...