Delpeche v. Tastes On The Fly New York, LLC

Background

Katherine Delpeche filed this action asserting discrimination, harassment, and retaliation claims under federal law, New York State law, and New York City law. The opinion states that Delpeche’s counsel informed the court on February 9, 2022, that Delpeche had died. A statement reporting her death, called a “Suggestion of Death,” was filed on April 20, 2022, with a certificate stating that it had been served on Delpeche’s counsel and at her last known address.

The opinion also states that counsel for both sides said reasonable efforts to contact Delpeche’s family had failed. No motion to substitute another proper party for Delpeche was filed. The defendant moved to dismiss on August 15, 2022, and no opposition was filed.

Rule and Analysis

Federal Rule of Civil Procedure 25(a)(1) allows a party or the deceased party’s successor or representative to ask the court to substitute a proper party when a party dies and the claim continues. The rule requires dismissal when no substitution motion is made within 90 days after a statement noting the death is served.

The court held that more than 90 days had passed since the statement of death was filed and served, and no substitution motion had been made. It therefore concluded that Rule 25(a) required dismissal. The court did not address the merits of Delpeche’s discrimination, harassment, or retaliation claims.

Disposition

The court granted the defendant’s motion to dismiss. It dismissed the case, directed the Clerk to terminate all open motions, and ordered the case closed. The opinion did not state that the dismissal was with prejudice or without prejudice.