Abdou v. Walker
- Paul Engelmayer
- 1:19-cv-01824
- U.S. District Court · Southern District of New York
- 3
In Abdou v. Mahany, Judge Engelmayer granted Abdou’s motion to substitute Lori Ann Walker for deceased defendant Brian Mahany.
Shareef Abdou, Lori Ann Walker, and the Estate of Brian Howard Mahany.
What happened
In Abdou v. Mahany, Shareef Abdou asked the court to replace defendant Brian Mahany with Lori Ann Walker, the independent executor of Mahany’s estate, after Mahany died. No party objected to the requested substitution.
The court found that Abdou’s claims were not extinguished by Mahany’s death under Wisconsin law, that Walker was a proper replacement because Mahany’s estate had not been distributed, and that the motion was timely. The court explained that the 90-day deadline had not begun because the notice of death did not identify a successor or representative.
Judge Paul A. Engelmayer granted the motion. The court directed the clerk to terminate Mahany as a party and substitute Lori Ann Walker, Independent Executrix of the Estate of Brian Howard Mahany, in the case caption.
The detailed version
- Abdou v. Walker · No. 1:19-cv-01824
- Paul Engelmayer
- May 6, 2022
Background
Shareef Abdou moved under Federal Rule of Civil Procedure 25(a) to substitute Lori Ann Walker, Independent Executrix of the Estate of Brian Howard Mahany, for defendant Brian Mahany. The court had previously stated that it intended to grant the motion unless a party objected by April 15, 2022. No party objected.
Court’s analysis
Rule 25(a) allows substitution when a party dies, the claim survives the death, the proposed substitute is a proper party, and the motion is made within 90 days after service of a valid statement noting the death.
The court determined that Abdou’s claims against Mahany were not extinguished. Because the case was based on diversity jurisdiction and had been transferred from the Eastern District of Wisconsin for convenience, the court applied Wisconsin law. It concluded that the asserted claims—including breach of fiduciary duty, breach of contract, unjust enrichment, professional negligence, and reasonable attorneys’ fees—survived Mahany’s death under Wisconsin law.
The court also found Walker to be a proper party. Mahany had named Walker as the independent executrix of his estate in his will, she had been appointed on February 2, 2022, and the estate had not been distributed.
Finally, the court found the motion timely. Although Mahany’s counsel filed a January 6, 2022 letter notifying the court of Mahany’s death, the letter did not identify the successor or representative who could be substituted. The court therefore held that the 90-day period had not begun to run.
Ruling
The court granted the motion to substitute Walker for Mahany. It directed the clerk to terminate the motion at docket 140, remove Mahany as a party, and substitute Lori Ann Walker, Independent Executrix of the Estate of Brian Howard Mahany, in the caption.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.