McNair v. Anthony J. Annucci
- Nelson Roman
- 7:17-cv-09568
- U.S. District Court · Southern District of New York
- 2
In McNair v. Annucci, Judge Roman directed notice to McNair’s next of kin and allowed substitution before a possible dismissal.
Larry McNair’s pending claims, Lisa Stevens as the identified next of kin who could seek substitution, and the defendants who were ordered to serve the opinion and file proof of service.
What happened
In McNair v. Anthony J. Annucci, Larry McNair brought claims under a federal civil-rights law while representing himself. Defense counsel reported that McNair had died, and later provided his death certificate.
The court explained that a proper successor or representative generally has 90 days after notice of a party’s death to ask to be substituted. The court also recognized that this period may be extended when identifying the proper representative is difficult.
Judge Nelson S. Roman ordered the defendants to serve the opinion and order on Lisa Stevens, identified as McNair’s next of kin, and file proof of service. Stevens was allowed to seek substitution by the deadline stated in the order; if no timely request was made, the complaint would be deemed dismissed after the defendants filed the required affidavit and proposed dismissal order.
The detailed version
- McNair v. Anthony J. Annucci · No. 7:17-cv-09568
- Nelson Roman
- Mar. 5, 2020
Background
Larry McNair, proceeding without a lawyer, brought claims under 42 U.S.C. § 1983 against multiple defendants, including the New York State Department of Corrections and Community Supervision. Defense counsel reported that McNair had allegedly died in August 2019. The opinion identifies Lisa Stevens, described as McNair’s girlfriend and the person with whom he had lived before his death, as his last known next of kin. Defense counsel later submitted a copy of McNair’s death certificate.
Applicable Rule
Federal Rule of Civil Procedure 25(a)(1) provides a procedure for substituting a proper successor or representative when a party dies and the claim continues. Under that rule, a party or the decedent’s successor or representative may move for substitution. If no motion is made within 90 days after service of a statement noting the death, the action must be dismissed. The court stated that the 90-day period may be extended when there is an inability or significant difficulty in identifying the decedent’s legal representative or successor.
Court’s Action
The court directed the defendants to serve a copy of the opinion and order on Lisa Stevens at her last known address and file proof of service on the docket. It allowed Stevens to move to be substituted as McNair’s representative for the purpose of prosecuting his remaining claims. The order states a deadline of May 10, 2019, described as 90 days from service of a copy of the death certificate; that date appears inconsistent with the opinion’s March 5, 2020 date and the stated 90-day calculation. The court did not itself dismiss the complaint. Instead, it stated that the complaint would be deemed dismissed if no timely substitution was requested and the defendants later submitted an affidavit confirming that no substitution had been requested along with a proposed dismissal order.
Disposition and Classification
This was a procedural order concerning substitution after a party’s death. The court did not decide the merits of McNair’s § 1983 claims.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.