McGuinnes v. Novartis Pharmaceuticals Corp.
McGuinnes v. Novartis Pharmaceuticals Corp.
Opinion of the Court
ORDER
This cause comes before the Court on Defendant Novartis Pharmaceuticals Corporation’s (“Defendant”) Motion to Dismiss based on Rule 25 with Supporting Memorandum of Law (Doe. No. 63), filed on January 15, 2013, and Plaintiff James McGuinness’ (“Plaintiff’) response thereto (Doc. No. 65), filed on January 29, 2013.
I. BACKGROUND
Plaintiff passed away on April 11, 2012 (Doc. No. 56); however, Plaintiffs counsel, without notifying the Court of Plaintiffs death, actively continued to litigate this matter, including filing a case management report.
On October 10, 2012, Defendant, pursuant to Federal Rule of Civil Procedure 25(a)(1), filed a suggestion of death. (Doc. No. 56). As well, on October 15, 2012, Defendant personally served Plaintiffs widow, Margaret McGuinness, with the previously filed suggestion of death. (Doe. No. 58).
On October 15, 2012, the Court directed Plaintiffs counsel to advise the Court by October 30, 2012 as to whether his client is deceased and, if so, whether Plaintiffs claims are extinguished or how Plaintiffs counsel plans to proceed. (Doc. No. 57). In response, Plaintiffs counsel confirmed Plaintiffs April 11, 2012 death and, in contradiction to Rule 25(a)(1), requested, pursuant to Rule 25(a)(1), that the Court substitute sua sponte Margaret McGuinness (“Mrs. McGuinness”) for Plaintiff in this case. (Doc. No. 59 at p. 2). The Court rejected counsel’s request because any request for substitution of a party must be made by a separate motion. (Doc. No. 60).
As well, in response to the Court’s October 15, 2012 Order, Defendant informed the Court that the failure of Plaintiffs counsel to move for substitution has led to delays in discovery, including an impediment to obtaining medical records from Plaintiffs doctors. As well, Defendant claims that Plaintiffs counsel has failed to provide Defendant with proprietary authorizations requested for certain health care providers. (Doc. No. 61 at pp. 3-4); (Doc. No. 61-1).
On January 15, 2013, Defendant filed the present motion to dismiss under Rule 25(a)(1), arguing that the decedent’s successor or representative failed to file a motion for substitution within 90 days after October 15, 2012, the date of service of a statement noting the death. (Doe. No. 65). On January 29, 2013, Plaintiff filed his response, along with a motion for substitution to replace Plaintiff with Margaret McGuinness. (Doc. Nos. 64 & 65). The Court denied Plaintiffs motion for failure to comply with Local Rule 3.01(g). (Doc. No. 66).
Rule 25(a) provides:
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.
Fed.R.Civ.P. 25(a)(1). Under this rule, the Court is permitted to dismiss a ease if the motion for substitution is not made within 90 days after the date death is suggested upon the record. Escareno v. Carl Nolte Sohne GmbH & Co., 77 F.3d 407, 411 (11th Cir. 1996). However, two affirmative steps must be taken before the ninety days begin to run. First, a party must formally suggest the death on the record. See Hardy v. Potter, No. CV408-223, 2009 WL 765028, at *1 (S.D.Ga. Mar. 23, 2009) (citations omitted). Second, the party that filed the suggestion must serve nonparty successors or representatives of the decedent with the suggestion of death, consistent with Federal Rule of Civil Procedure 4. See id. (citation omitted). In the present case, Defendant has complied with these two affirmative steps by filing the suggestion of death (Doc. No. 56) and personally serving on October 15, 2012 Mrs. McGuinness, the decedent’s successor or representative (Doc. No. 58). Therefore, the ninety-day period began to run from October 15,2012. See Fed.R.Civ.P. 25(a)(1). As well, to date, no party or representative has filed a motion to extend the time in which to file a motion for substitution. See Broyles v. McCane, No. 7:04-cv-118(HL), 2006 WL 2452486, at *1 (M.D.Ga. Aug. 23, 2006) (“Finally, a court is authorized to extend the time in which to file a motion for substitution before the expiration of the ninety-day period pursuant to Federal Rule of Civil Procedure 6(b).”).
It is undisputed that neither a party nor a representative or successor of the decedent has filed a motion for substitution within the requisite ninety days. In fact, Plaintiffs counsel admits that the motion for substitution, which the Court denied, was filed late. (Doc. No. 65 at p. 5); see also supra note 2 (listing numerous issues with motion). To date, no one has filed a new motion for substitution. Even if the Court were to construe the motion Plaintiffs counsel filed nearly two weeks after the deadline as tolling the clock, the Court still finds that Plaintiffs counsel failed to offer any equitable reason for denying Defendant’s motion.
Excusable neglect is an equitable concept in which the Court may take into account all the relevant circumstances surrounding the party’s omission. The party invoking excusable neglect must show good faith and a reasonable basis for noncompliance with Rule 25(a)(1). See Schmidt v. Merrill Lynch Trust Co., No. 5:07-cv-382-Oc-10GRJ, 2008 WL 2694891, at *4 (M.D.Fla. June 30, 2008) (citations omitted); 4B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure: Civil 3d § 1165 (3d ed. 2002).
In the present ease, the arguments of Plaintiffs counsel lack a reasonable basis for finding excusable neglect. Plaintiffs counsel claims that he did not research and realize the motion for substitution had not been filed until he received Defendant’s present motion to dismiss. (Doc. No. 65 at pp. 5-6). The Court does not find this argument to have a reasonable basis and questions whether it is made in good faith, considering the fact that: (1) Plaintiffs counsel cited and quoted Rule 25 in a prior filing (see (Doc. No. 59)); (2) the Court directly ordered that a motion needed to be filed (see Doc. Nos. 57 & 60); and (3) Plaintiffs counsel previously missed the same Rule 25(a) deadline last fall in a similar case against the Defendant in the Northern District of Florida, see Lawson v. Novartis Pharmaceuticals Corporation, No. 3:12-cv-74-MCR/EMT (N.D.Fla. Oct. 5, 2012). As the evidence shows, Plaintiffs counsel is well aware of Rule 25 and its implications.
For additional support, Plaintiffs counsel claims he is jointly handling 200 related eases involving the Defendant. (Doc. No. 65 at p. 6). However, the ability of Plaintiffs counsel to manage his caseload is not a sufficient reason to disregard the Federal Rules of Civil Procedure. Additionally, Plaintiffs counsel argues that he had difficulty communicating with Plaintiff prior to his death (id.); however, this does not appear persuasive considering that in 2010, two years before Plaintiffs death, Plaintiff gave Mrs. McGuinness a durable power of attorney. (See Doe. No. 63-2).
Plaintiffs counsel also argues that he has not been able to reach Mrs. McGuinness for months at a time since her husband’s death in April 2012. (Doc. No. 65 at p. 7). However, the argument of Plaintiffs counsel is internally inconsistent, considering he argues that Mrs. McGuinness has been involved actively in this litigation. (See (Doc. No. 65 at pp. 2, 7); (Doc. No. 64 at ¶ 4 (“Margaret McGuinness has been closely involved in this action. While she did not initially file the action, after Mr. McGuinness passed away, she helped complete the required Plaintiffs Fact Sheet in this litigation as well as the required authorizations allowing Defendant Novartis Pharmaceuticals Corporation to receive Mr. McGuinness’ medical records.”))).
Finally, Plaintiffs counsel claims that Defendant has not been prejudiced by delay. (Doe. No. 65 at p. 8). However, as stated previously, Defendant contends that the failure of Plaintiffs counsel to move for substitution has led to delays in discovery, including an impediment to obtaining medical records from Plaintiffs doctors. (Doc. No. 61 at pp. 3-4); (Doc. No. 61-1). Even if the Court were to accept Plaintiffs argument on its face, the Court finds that Plaintiffs counsel
III. CONCLUSION
Therefore, based on the foregoing, Defendant’s Motion to Dismiss based on Rule 25 with Supporting Memorandum of Law (Doc. No. 63), filed on January 15, 2013, is GRANTED.
. Plaintiff's counsel concedes that Margaret McGuinness ("Mrs. McGuinness”) is the Plaintiff's successor or representative. (See Doc. No. 59). It appears that in 2010, Plaintiff gave Margaret McGuinness a durable power of attorney over his affairs (Doc. No. 63-2); however, there is still no proof that she is his personal representative. (See Doc. No. 65 at p. 2 ("[Plaintiff’s] window, Mrs. Margaret McGuinness, however, will assume his case by becoming the representative of his estate.”)). Therefore, as of January 29, 2013, Plaintiff's counsel still has failed to show that Mrs. McGuinness is the personal representative of Plaintiff's estate and whether Plaintiff's counsel represents Mrs. McGuinness in that capacity.
On January 29, 2013, Plaintiff's counsel filed a motion for substitution, requesting the Court to substitute as plaintiff in this case Margaret McGuinness, as personal representative for the Estate of James McGuinness. (Doc. No. 64). As previously stated above, the Court denied the motion without prejudice because Plaintiff’s counsel failed to comply with Local Rule 3.01(g). (Doc. No. 66).
Notwithstanding the noncompliance with Local Rule 3.01(g), the Court notes the motion was riddled with other issues not addressed. First,
. The Court reiterates that no party or representative or successor of decedent requested an ex
Reference
- Full Case Name
- James McGUINNES v. NOVARTIS PHARMACEUTICALS CORPORATION
- Cited By
- 10 cases
- Status
- Published