Grant v. Witherspoon
- Barbara Moses
- 1:19-cv-02460
- U.S. District Court · Southern District of New York
- 7
In Grant v. Witherspoon, Judge Moses denied without prejudice Grant’s motion to substitute two nonparties because he had not properly served them.
Ronald Grant’s request to replace deceased defendant John Witherspoon with Alexander Witherspoon and John David Witherspoon was denied without prejudice; the court did not decide whether the sons could properly be substituted.
What happened
In Grant v. Witherspoon, Ronald Grant asked to substitute Alexander Witherspoon and John David Witherspoon for their late father, John Witherspoon, who was a defendant. Grant’s lawsuit includes copyright and other claims concerning a film based on his play.
Grant admitted that he had not served either proposed substitute with his motion or with the document reporting John Witherspoon’s death. The court explained that federal rules require this service before substitution can be ordered.
Judge Barbara Moses denied the motion without prejudice, allowing it to be renewed or refiled under the applicable rule. The court did not decide whether the two sons were legally proper people to substitute for John Witherspoon.
The detailed version
- Grant v. Witherspoon · No. 1:19-cv-02460
- Barbara Moses
- Jan. 3, 2020
Background
Ronald Grant sued Angela Robinson Witherspoon, John Witherspoon, and T Boyds Boy Productions over a short film based on Grant’s autobiographical play. Grant asserted copyright infringement, breach of contract, violations of his right of publicity under New York and California law, intentional infliction of emotional distress, and conversion.
John Witherspoon died intestate on or about October 29, 2019. Grant filed a document notifying the court of the death, but it did not identify an estate representative or successor and, according to the record, was not served on any such person. Grant later moved under Federal Rule of Civil Procedure 25(a) to substitute John Witherspoon’s sons, Alexander Witherspoon and John David Witherspoon, as defendants in his place. Grant argued that the sons were or would become beneficiaries of the estate.
Analysis
Rule 25(a) permits substitution when a party dies and the claim continues. It requires a substitution motion and hearing notice to be served on nonparties under Rule 4, which generally governs service of a summons. A statement reporting the death must also be served in the required manner.
The court held that Grant’s motion had to be denied because he did not serve it on Alexander Witherspoon or John David Witherspoon, the nonparties he sought to substitute. The court also concluded that Grant’s earlier death notice did not start the 90-day period for filing a substitution motion because it neither identified a successor or representative nor was properly served.
Ruling
The court denied Grant’s motion for substitution without prejudice to renewal or refiling in accordance with Rule 25(a). Because service was inadequate, the court did not decide whether the two sons—described as potential future distributees of an undistributed estate—were proper candidates for substitution. The court noted that if Angela Robinson Witherspoon were appointed administrator of John Witherspoon’s estate, Grant might instead seek to substitute her in that capacity, either by motion or stipulation.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.