Brock v. Avanzado
- Vincent Briccetti
- 7:19-cv-05891
- U.S. District Court · Southern District of New York
- 2
In Brock v. Avanzato, Judge Briccetti dismissed the case under Rule 25 after apparent deaths and no identified successor or representative.
The dismissal ended the case involving Vincent A. Brock, Dr. Avanzato, and Dr. Zamilus after the court received indications of deaths and no successor or representative was identified for the plaintiff or Dr. Avanzato.
What happened
Brock v. Avanzato involved a self-represented plaintiff and two doctors. The court had previously partly granted and partly denied the doctors’ motion to dismiss, but later learned that Dr. Joseph Avanzato had died and received mail suggesting that the plaintiff had also died.
The court gave the parties instructions about possible substitution of the deceased parties and held a conference. The plaintiff did not appear, court mail was returned marked “deceased,” and defense counsel reported that he knew of no successor or representative for either the plaintiff or Dr. Avanzato.
Judge Vincent L. Briccetti dismissed the case under Federal Rule of Civil Procedure 25(a)(1) and directed the Clerk to close it. The court also denied the plaintiff permission to appeal without paying filing fees, certifying that an appeal would not be taken in good faith.
The detailed version
- Brock v. Avanzado · No. 7:19-cv-05891
- Vincent Briccetti
- Feb. 1, 2021
Background
The court had previously granted in part and denied in part the defendants’ motion to dismiss. It ordered Dr. Avanzato and Dr. Zamilus to answer the complaint and directed the parties to submit a proposed discovery and scheduling order.
On October 6, 2020, the defendants reported that Dr. Joseph Avanzato had died on or about April 9, 2020. Dr. Zamilus filed an answer stating that Dr. Avanzato was being terminated as a party subject to Federal Rule of Civil Procedure 25. The court then directed defense counsel to explain how Dr. Avanzato’s estate could be substituted as a defendant under Rule 25(a)(1).
The court also received returned mail addressed to the plaintiff. The envelope was marked that it was undeliverable and included the handwritten notation “return to sender, deceased.” Defense counsel stated that the plaintiff had not responded to a proposed discovery plan. At an October 22, 2020, telephone conference attended by defense counsel, the plaintiff—who was proceeding without a lawyer—did not appear.
Rule 25 and the Court’s Action
Rule 25(a)(1) provides that when a party dies and the claim continues, the court may order substitution of the proper party. If a motion for substitution is not made within 90 days after a statement noting the death is served, the action by or against the deceased party must be dismissed. The opinion notes that a civil-rights claim under 42 U.S.C. § 1983 survives the death of a defendant.
The court ordered defense counsel to file a notice of the plaintiff’s death and later report whether counsel had learned of any successor or representative for the plaintiff or Dr. Avanzato. On January 29, 2021, defense counsel reported that he had not learned of any successor or representative for either person.
Disposition
The court dismissed the case under Rule 25(a)(1) and directed the Clerk to close the case. The opinion does not state that the dismissal was with or without prejudice. The court also certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and denied permission to appeal without paying filing fees. The court directed its chambers to mail a copy of the order to the plaintiff’s address on the docket.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.