This matter is before the court for consideration of the motion of the defendant, Alfred Wayne Hawks,*fn1 for substitution of party (DN 155) and the joint motion of the defendants, Steven I. Shedlofsky, M.D., CorrectCare-Integrated Health, Inc., Angela Clifford, M.D., Rashid Faiyaz, M.D., and Roy Washington, ARNP,*fn2 to dismiss for failure to timely file a motion to substitute (DN 156). For the reasons set forth herein, the motion to dismiss will be granted, the motion for substitution of party will be denied, and the complaint will be dismissed with prejudice.
The procedural history of this case is undisputed.
This action was originally filed pro se by Alfred Wayne Hawks alleging that he was receiving inadequate medical care for his Hepatitis C while incarcerated in the Kentucky prison system. Counsel entered an appearance in February, 2011 on behalf of Mr. Hawks. Discovery and dispositive motion practice proceeded until August 23, 2012 when his counsel filed a Suggestion of Death upon the Record (DN 150). The court entered an order on August 30, 2012 administratively remanding the pending motions pending further information concerning the continued viability of the action after Mr. Hawks' death. On November 23, 2012, ninety-two days after the filing of the Suggestion of Death, Hawks' counsel sought substitution of Angela Toler, Hawks' sister and the administratrix of Hawks' estate, as plaintiff. (DN 155). Toler qualified as executrix of the estate on September 18, 2012. (DN 155-1).
On December 10, 2012, defendants Shedlofsy, CorrectCare, Clifford, Faiyaz, and Washington filed a response objecting to substitution, and filed a joint motion to dismiss the action for failure of the administratrix to move for substitution within the ninety-day time limit of Fed.R.Civ.P. 25(a)(1). (DNs 156, 157). The Kentucky Department of Corrections joined the motion. (DN 158). Responses and replies were filed. No motion for leave to file out of time has been filed, despite the acknowledgment that the motion for substitution of party was untimely. Rather, the sole argument raised is that the lateness of the motion should be overlooked due to excusable neglect. (DN 161). As no grounds sufficient to establish excusable neglect have been shown, the motion for substitution of party must be denied.
Fed.R.Civ.P. 25(a)(1) states 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.
The Advisory Committee Notes to the rule contain the following insightful text:
The amended rule [ incorporating the 1963 amendments] establishes a time limit for the motion to substitute based not upon the time of death, but rather upon the time information of the death is provided by means of a suggestion of death upon the record, ie. service by means of a statement of the fact of the death...The motion may not be made later than 90 days after the service of the statement unless the period is extended pursuant to Rule 6(b), as amended...A motion to substitute may be made by any party or by the representative of the deceased party without awaiting the suggestion of death. Indeed, the motion will usually be so made...A motion to substitute made within the prescribed time will ordinarily be granted..
Fed.R.Civ.P. 25 Adv. Comm. Note.
Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure provides that "[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time...on motion made after the time has expired if the party failed to act because of excusable neglect."
First, we note that the administratrix of the estate of Alfred Wayne Hawks has never made a motion to extend time pursuant to Fed.R.Civ.P. 6(b)(1)(B). In the administratrix' response to the motion to dismiss, she requests that her response be treated as a supplement to the motion for substitution of party,*fn3 citing Fed.R.Civ.P. 15(a) and (d). Again, this "request" in a responsive brief is not a motion, nor is Rule 15 applicable to motions to file supplemental memoranda or motions. Motions are not "pleadings" under the Federal Rules. (See Advisory Committee Notes to Rule 15 stating that "...a motion is not a "pleading" as defined in Rule 7.").
Assuming, arguendo, that the administratrix of the estate of Alfred Wayne Hawks were deemed to have filed a motion to be substituted as plaintiff, supported by a memorandum in support and accompanied by a later motion for leave to file her motion out of time, the administratrix would then be required to establish that failure to comply with the requirements of Fed.R.Civ.P. 25(a) because of excusable neglect.
In order to satisfy the standard for excusable neglect, the tardy party must show that the balance of five ...