Moul v. Pace, Civ. No. 16784.
Decision Date | 12 December 1966 |
Docket Number | Civ. No. 16784. |
Citation | 261 F. Supp. 616 |
Parties | Curtis Edward MOUL, Jr. and Priscilla Moul v. James Roddy PACE and Joseph O. Trahan t/a Sani-Kan Company and Sani-Kan Company, a corporation. |
Court | U.S. District Court — District of Maryland |
Jacob S. Levin, Langley Park, Md., and Andrew B. Ferrari, Arlington, Va., for plaintiffs.
John M. McInerney, Bethesda, Md., and John K. Barbour, Jr., Baltimore, Md., for defendants, Joseph O. Trahan, t/a Sani-Kan Company and Sani-Kan Company, a corp.
Plaintiffs filed suit in this Court on October 13, 1965, alleging that they suffered injuries on December 24, 1962, in an automobile accident caused by the negligence of defendant Pace, an agent, servant or employee of one or both of the other two defendants. Jurisdiction is based upon diversity of citizenship. Defendant Trahan filed an answer to the complaint. Defendant Sani-Kan Company's motion for summary judgment was granted pursuant to a stipulation of all parties.
The Return on Service of Writ, dated October 26, 1965, stated that defendant Trahan had reported that defendant Pace was deceased. On December 4, 1965, a Suggestion of the Death of defendant Pace was filed by counsel for plaintiffs. On July 16, 1966, plaintiffs filed a motion for substitution of Albert Ginsberg, Esquire, Administrator of the Estate of James Roddy Pace as party defendant in place of defendant Pace. In so doing, plaintiffs alleged the death of defendant Pace on February 12, 1965, and the issuance of letters of administration to, and the qualification of, the administrator on March 24, 1966, in Anne Arundel County, Maryland. On July 18, 1966, defendant Trahan filed a "Motion to Strike" plaintiffs' motion for substitution.
Federal Rule 25(a) (1) provides as follows:
In Chorney v. Callahan, 135 F.Supp. 35 (D.Mass.1955), defendant Callahan died on January 11, 1953. Suit was thereafter instituted on March 13, 1953. The Court held that Rule 25(a) (1) was not applicable as it "clearly contemplates substitution for a party, i. e., for someone who had been made a party to the action before his death." Chorney v. Callahan, supra, 135 F.Supp. at 36.
This Court agrees that Rule 25 (a) (1) does not apply in this case because the defendant Pace was deceased at the time the suit was filed. Therefore, questions presented by the ninety day provision of Rule 25(a) (1) and possible enlargement of that period under Rule 6(b) (2) do not need to be decided in this proceeding.
The Court has considered the possibility that plaintiffs' motion for substitution might be treated as a motion to add a party by way of amendment pursuant to Federal Rule 15(c), the first paragraph of which provides:
(Emphasis added).
For discussion of Rule 15(c) and its application to adding parties, see 3 MOORE, FEDERAL PRACTICE ¶ 15.085 (1964).
The "period provided by law for commencing the action" was three years. Burket v. Aldridge, 241 Md. 423, 216 A.2d 910 (1966), 5 MD.ANN. CODE art. 57, § 1 (1964 Replacement Vol.).
In Burket v. Aldridge,...
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..., i.e., "someone who had been made a party to the action," through service of the Complaint, "before his death." Moul v. Pace , 261 F. Supp. 616, 617-18 (D. Md. 1966) (emphasis added) (quoting Chorney v. Callahan , 135 F. Supp. 35, 36 (D. Mass. 1955) ). Accordingly, courts cannot substitute......
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