Opinion
1:19-cv-7300-FB-RML
06-25-2021
SEMYON GRINBLAT, individually and and on behalf of others similarly situated, Plaintiff, v. 1200 VICTORY MANAGEMENT CORP., VICLOVE PROPERTIES, LLC; JOHN DOES 1-X; CORPORATIONS 1-X
For the Plaintiff: ADAM DOUGLAS FORD Ford & Crane, PLLC For the Defendants: MICHAEL S. ORR Call & Jenson, PLLC
For the Plaintiff:
ADAM DOUGLAS FORD
Ford & Crane, PLLC
For the Defendants:
MICHAEL S. ORR
Call & Jenson, PLLC
MEMORANDUM AND ORDER
FREDERIC BLOCK SENIOR UNITED STATES DISTRICT JUDGE
Plaintiff's counsel filed a Suggestion of Death on March 4, 2021, indicating that his client, Semyon Grinblat, passed away on February 13, 2021. ECF No. 27. Plaintiff's counsel moves dismissal of the Grinblat's claims without prejudice. ECF No. 32. Cf. Kernisant v. Cty of New York, 225 F.R.D. 422, 427 (E.D.N.Y. 2005) (holding that a decedent's lawyer had “standing” to file necessary procedural motions).
The Court construes counsel's motion as a request for dismissal under Federal Rules of Civil Procedure 25(a)(1). That Rule states:
If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion [for substitution] is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.
The rule's requirements are met here. A Suggestion of Death was filed 110 days ago, and Grinblat's counsel avers that Grinblat's heirs “do not intend to seek appointment of an executor” to pursue his claims. ECF No. 32 at 1.
The Court notes that Grinblat's proposed class was never certified, and no putative class members will suffer prejudice from a dismissal of the instant case. The Court further notes that it provided plaintiff's counsel an opportunity to substitute an appropriate class plaintiff, and that counsel responded to that opportunity by filing the instant motion to dismiss. See Minute Entry of April 27, 2021; ECF No. 32. See also Swan v. Stoneman, 635 F.2d 97, 102 n.6 (2d Cir. 1980) (encouraging courts to give a reasonable time for class counsel to substitute a named plaintiff).
For the forgoing reasons, Counsel's motions to dismiss without prejudice and to withdraw from the case are GRANTED. This case is DISMISSED WITHOUT PREJUDICE.
Ordinarily, a 25(a)(1) dismissal is an “involuntary dismissal” that must be entered “with prejudice.” See Fed.R.Civ.P. 41(b). See also Lungu v. New Island Hosp./St. Josepth Hosp., No. CV-11-0755(SJF)(GRB), 2012 WL 3115930, at **1-2 (E.D.N.Y. Jul 24, 2012) (dismissing with prejudice under Rule 25(a)(1) after the plaintiff failed to respond to court orders). However, because Grinblat's attorney moves for “voluntary dismissal, ” the Court will exercise its authority under Federal Rule of Civil Procedure 41(a)(2) to dismiss this action without prejudice. See Zanowick v. Baxter Healthcare Corp., 850 F.3d 1090, 1096 (9th Cir. 2017) (rejecting “defendants' contentions that Rule 25(a)(1) required dismissal with prejudice and affirm[ing]. . . dismiss[al] without prejudice under Rule 41(a)(2)”).
SO ORDERED.