Yonofsky v. Wernick, 64 Civ. 417.

• Decision Date: 26 July 1973
• Docket Number: No. 64 Civ. 417.,64 Civ. 417.
• Parties: Harry YONOFSKY, Plaintiff, v. Sol WERNICK, Defendant.
• Court: U.S. District Court — Southern District of New York

362 F. Supp. 1005

Harry YONOFSKY, Plaintiff, v. Sol WERNICK, Defendant.

No. 64 Civ. 417.

United States District Court, S. D. New York.

July 26, 1973.

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Friedman & Fischman, New York City (William D. Friedman, New York City, of counsel), for plaintiff.

Stull & Stull, New York City (Richard J. Stull, New York City, of counsel), for defendant.

OPINION

EDELSTEIN, Chief Judge:

I. INTRODUCTION

Plaintiff¹ commenced this action on February 6, 1964 by filing a complaint charging defendant with wrongfully excluding him from a joint venture or partnership. Plaintiff contends that he and defendant entered into an oral agreement in April, 1963 to acquire and thereafter operate as a joint venture the assets of the Potentiometer² Division of the DeJur-Amsco Corporation³ hereinafter referred to as DeJur. The complaint further alleges that the parties agreed that if plaintiff would use his "peculiar, unique and close relationship with DeJur Amsco Corporation and its officers and directors to initiate, influence, arrange and facilitate the said acquisition, defendant would supply the entire cash consideration." Additionally, plaintiff asserts that the parties agreed to operate their joint venture through a corporation to be formed in Connecticut, and that they agreed that the Corporation would be called Samarius, Inc.⁴

Plaintiff alleges that defendant, after long and protracted negotiations, eventually acquired the DeJur Potentiometer Division on or about September 30, 1963; that plaintiff was excluded from the acquisition; and that defendant thereby breached their joint venture agreement.⁵

The first cause of action seeks one-half of all sums received by defendant through his acquisition and operation of the DeJur Potentiometer Division. The second cause of action seeks recovery of one-half of the value of the Potentiometer Division or $25,000.00 at plaintiff's option, for services performed by plaintiff in initiating and arranging for defendant's acquisition.

Upon agreement of the parties an order was entered pursuant to Fed.R.Civ. P. 42(b) providing for a separate trial on the issue of liability. At the same time all discovery sought by plaintiff with respect to the operations of Samarius, Inc., which was aimed at eliciting damages, was held in abeyance pending determination of the liability issue. Thereafter, on plaintiff's motion this action was assigned to the commercial non-jury calendar for purposes of trial on the issue of liability.

After much delay, trial was commenced on April 15, 1970 and was concluded on the following day. Decision was reserved. The parties were instructed to prepare post-trial memoranda and to submit proposed findings of fact and conclusions of law. The court was provided with these items by midsummer 1970.

II. MOTION FOR SUBSTITUTION

While this case was sub judice, defendant served a suggestion of death pursuant to Fed.R.Civ.P. 25(a)(1), indicating for the record that the plaintiff, Harry Yonofsky, died on October 25, 1970.⁶ On February 25, 1971, Charles Winter, in his capacity as executor of plaintiff's estate, moved to be substituted as party plaintiff.⁷ Since the time to move for substitution under Rule 25(a)(1) had expired, Winter also moved for an enlargement of time in which to make the motion. Fed.R.Civ.P. 6(b)(2). Defendant opposed the motion for substitution on the ground that it was untimely.

Rule 25(a)(1) provides as follows:

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 as 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. emphasis added.

In his papers opposing the motion for substitution, defendant states that, "The motion to substitute plaintiff's Executor is dated 118 days following the serving and filing of the suggestion of plaintiff's death upon the record." From this he concludes that the motion is untimely and requests that the motion be denied and that the action be dismissed as provided for in Rule 25(a). In support of this position, defendant relies on Johns Hopkins University v. Hutton, 297 F.Supp. 1165 (D.Md.1968) and Graham v. Pennsylvania Railroad, 119 U.S.App. D.C. 335, 342 F.2d 914 (1964), cert. denied, 381 U.S. 904, 85 S.Ct. 1446, 14 L. Ed.2d 286 (1965).

In the Johns Hopkins case four of the original defendants had died after the commencement of the action. Suggestions of death were duly filed with respect to each of the deceased defendants. As to two of the defendants no motion for substitution was made by anyone connected with the litigation. The court dismissed the complaint with respect to those defendants. Regarding the other two deceased defendants, motions to substitute their executors were made and the executors concerned were duly served with the motions for substitution. There was no opposition to these motions. The court, therefore, entered an order substituting the executors for these deceased defendants.

In Graham the United States Court of Appeals for the District of Columbia Circuit, with one member of the panel dissenting, affirmed per curiam the dismissal of an action with respect to a deceased plaintiff by the district court. The lower court predicated its dismissal on the ground that plaintiff had failed to comply with Rule 25(a)(1) by not moving for substitution within the ninety-day period provided for after a suggestion of death is filed. On appeal the issue was whether the district judge had abused his discretion in refusing to extend the time in which a motion for substitution could be made. Plaintiff's attorney moved for an enlargement of time under Rule 6(b). Upon a showing of "excusable neglect," Rule 6(b)(2) permits a party to move for enlargement of a time period that has expired. In Graham plaintiff's attorney predicated his "excusable neglect" argument on two grounds: (1) that he was unfamiliar with the 1963 Amendment to Rule 25, which mandated the ninety-day period for filing a motion for substitution⁸; and (2) that he was engaged in the preparation of seven appellate proceedings and one extensive trial during the period after he filed the suggestion of death. After a hearing the district court refused to extend the time to move for substitution and dismissed the action with regard to the deceased plaintiff. In affirming the decision below, the Court of Appeals found that the trial judge had not abused his discretion.⁹

Responding to these contentions, plaintiff's executor asserts that the suggestion of death served by defendant was defective and that the application for enlargement under Rule 6(b)(2) is meritorious.

Plaintiff's executor contends that the suggestion of death served by defendant was defective for two reasons. First, because it was only served on plaintiff's attorney and secondly, because it failed to identify plaintiff's representative.¹⁰ The two points are related. In relevant part Rule 25(a)(1) provides that a "motion for substitution may be made by any party . . . and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons . . . ." Additionally, it provides for the service of the suggestion of death in the same manner as provided for with respect to the motion for substitution. Consequently, plaintiff's executor contends that defendant should have served the suggestion of death on someone beside plaintiff's former counsel.¹¹ The "someone," however, was not identified. In general, the executor or administrator of a deceased party's estate is the individual substituted and upon whom service is effected. In the case at bar, it was defendant who suggested the death of plaintiff. He did so only two days after the plaintiff died.¹² Under these circumstances it would be difficult for defendant to know whom else to serve beside plaintiff's former counsel. With regard to the second point — i. e., that the suggestion of death was defective for failure to identify plaintiff's representative — the executor cites Rende v. Kay, 134 U.S.App.D.C. 403, 415 F.2d 983 (1969). In that case a suggestion of death was filed by the defendant's counsel indicating for the record that the defendant had died. The suggestion of death did not identify the deceased defendant's representative. Reversing the court below, the Court of Appeals held that the failure to name a successor or representative for the deceased defendant rendered the suggestion of death ineffective for purposes of triggering the ninety-day requirement. It should be noted, however, that in Rende, the attorney who filed the suggestion of death represented the deceased party, and, therefore, was in a position to know who would be the decedent's representative.¹³ It is precisely for this reason that the court felt that defendant's counsel was under an obligation to name a successor for the deceased party.¹⁴ Otherwise, the surviving party would be under the "burden of locating the representative of the deceased party's estate within 90 days." 415 F.2d at 986. In the case sub judice, it was the surviving party who suggested plaintiff's death. Therefore he would not be in the same position as was counsel for the deceased defendant in Rende. In general, he would not know who would be the representative or successor for the deceased party....