Munoz v. Eliezer
- Nelson Roman
- 7:16-cv-06049
- U.S. District Court · Southern District of New York
- 2
In Munoz v. Elizer, Judge Roman conditionally granted a motion requiring substitution after Carlos Munoz died during the case.
The order affected Carlos Munoz’s remaining excessive-force claim, his next of kin Theresa Munoz, and the defendant who sought dismissal. It gave Theresa Munoz an opportunity to seek substitution before the complaint could be deemed dismissed.
What happened
In Munoz v. Elizer, Carlos Munoz was pursuing a claim that defendants used excessive force against him in violation of the Eighth Amendment. Munoz was representing himself, and he died while the parties were conducting discovery.
A defendant asked the court to dismiss the remaining claim under a federal rule requiring a deceased party’s successor or representative to be substituted within 90 days after notice of death. Munoz’s sister and next of kin, Theresa Munoz, was notified, but more than fourteen months passed without anyone asking to be substituted or taking action to pursue the claim.
Judge Nelson S. Roman conditionally granted the defendant’s motion. The defendant must serve the order on Theresa Munoz, who has until March 30, 2020, to ask to be substituted; if no timely request is made, the complaint will be treated as dismissed after the defendant submits the required affidavit and proposed dismissal order.
The detailed version
- Munoz v. Eliezer · No. 7:16-cv-06049
- Nelson Roman
- Mar. 2, 2020
Background
Carlos Munoz, representing himself, brought claims under 42 U.S.C. § 1983. The court had previously dismissed all claims against Dr. Bentivegna and Nurse McCarthy. The remaining claim alleged that the defendants violated Munoz’s Eighth Amendment right to be free from excessive force.
Munoz died on September 28, 2018, while discovery was still pending. Defense counsel notified Munoz’s sister and next of kin, Theresa Munoz, and provided the family and the court with a death certificate. No one moved to substitute a legal representative or successor for Munoz, and no affirmative action was taken to prosecute the remaining claim.
Rule 25 and the motion
Federal Rule of Civil Procedure 25 provides a procedure for substituting a deceased party when the claim is not extinguished. A party, successor, or representative may request substitution. If no substitution motion is made within 90 days after service of a statement noting the death, the action must be dismissed. The court noted that this period may be extended when identifying the legal representative or successor is significantly difficult, but found that more than fourteen months had passed after notice to Munoz’s next of kin without a substitution request.
Ruling
The court conditionally granted the defendant’s motion to dismiss. It directed the defendant to serve the opinion and order on Theresa Munoz at her last known address and file proof of service. Theresa Munoz was given until March 30, 2020, to move to be substituted as Munoz’s representative for purposes of prosecuting the remaining claim or claims. If no timely substitution was requested, the complaint would be deemed dismissed after the defendant submitted an affidavit stating that no substitution had been requested and a proposed dismissal order. The Clerk was directed to terminate the motion at ECF No. 54.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.