Opinion
Civil Action 2:23-832
09-19-2023
ZAFAR IQBAL, Plaintiff, v. BPOA, PA STATE BOARD OF MEDICINE, et al., Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that Defendant Kimberly Ferketic be dismissed based upon Plaintiff's failure to effect service upon her.
II. Report
Plaintiff Zafar Iqbal brought this civil rights action against numerous defendants on May 17, 2023. His claims are alleged to arise from proceedings in Pennsylvania criminal courts and before the State Board of Medicine that resulted in his conviction on charges of simple assault and harassment, the revocation of his license to practice medicine and denial of his privileges to practice at various medical facilities.
All of the defendants have been served with the exception of Defendant Kimberly Ferketic. According to Plaintiff, Defendant Ferketic testified against him at a hearing before the State Board of Medicine.
On August 22, 2023, an order was entered (ECF No. 57) directing Plaintiff to show cause why Defendant Ferketic should not be dismissed from this action based upon his failure to serve her. In his August 26, 2023 response (ECF No. 62), Plaintiff represented that he learned on June 14, 2023 that Defendant Ferketic had passed away on August 10, 2020. He further indicated that he has been unable to identify a next of kin. Plaintiff stated that he did not wish to extinguish his claim against her, however, because her recorded testimony and written statements are material to this litigation.
A plaintiff “is responsible for having the summons and complaint served within the time allowed by Rule 4(m).” Fed.R.Civ.P. 4(c)(1). The burden rests on the plaintiff to prove proper service. Lampe v. Xouth, Inc., 952 F.2d 697, 701 (3d Cir. 1991); see also McKinnis v. Hartford Life, 217 F.R.D. 359, 361 (E.D. Pa. 2003). As a pro se litigant, Plaintiff is afforded particular leniency-although his status does not absolve him of the need to comply with the service rules. See Leach v. Phelan Hallinan Diamond & Jones, LLP, 2020 WL 1875631, at *5 (E.D. Pa. Apr. 15, 2020).
Pursuant to the Federal Rules of Civil Procedure, if a defendant is not served within 90 days after the complaint is filed, the court after notice must dismiss the action without prejudice or order that service be made within a specified time. Fed.R.Civ.P. 4(m). However, if a plaintiff shows good cause for the failure to effect service, the court must extend the time for service. Id. Plaintiff has not served Defendant Ferketic within the required 90 days. As reflected on the docket, the Complaint was filed on May 17, 2023. Ninety days after the Complaint was filed was August 15, 2023.
Plaintiff has not shown good cause for extending the time for service. Defendant Ferketic is deceased. Although Plaintiff claims that he intends to substitute another party for her under Rule 25 of the Federal Rules of Civil Procedure, he has not filed a motion for substitution. At any rate, Rule 25 is not applicable here, as it addresses the substitution of parties when a named party dies after a Complaint has been filed. See Darmanchev v. Roytshteyn, 234 F.R.D. 78, 80 (E.D. Pa. 2005). See also Davis v. Cadwell, 94 F.R.D. 306, 307 (D. Del. 1982) (“substitution of parties could not be ordered in conformance with Rule 25(a)(1) where, as here, the person for whom substitution is sought has died prior to being named a party.”). Because Defendant Ferketic passed away before this action was commenced, Plaintiff cannot rely upon Rule 25 to replace her with another party.
Notably, Plaintiff states that he wants to retain Defendant Ferketic as a party in order to preserve the testimony that she offered against him in a state administrative proceeding. However, her testimony has been recorded and in fact, the transcript is attached to the Complaint. (ECF No. 1-5.) Thus, there is no need to name her or her representative as a party merely for the purpose of citing her testimony. Moreover, any suggestion that Plaintiff could impeach or undermine her previous testimony through a substituted party is misguided.
Plaintiff has not suggested that he intends to amend his Complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure in order to name a party instead of Ferketic, but any such attempt would be futile. While the estate of a decedent can be substituted for the decedent under certain circumstances, see Rocco v. Bickel, 2013 WL 4000886, at *2 (M.D. Pa. Aug. 5, 2013), notice of the claim must be provided to the estate prior to the expiration of the statute of limitations in order for the amendment to relate back to the original filing. Fed.R.Civ.P. 15(c)(1). See also Schiavone v. Fortune, 477 U.S. 21, 29 (1986) (listing these as two of the four factors that must be met for an amended complaint to relate back to the date of filing of the original complaint); Davis, 94 F.R.D. at 308 (refusing to allow an amendment to relate back when the administrator of an estate was not provided notice prior to the expiration of the statute of limitations).
The Complaint alleges that Defendant Ferketic gave false testimony against Plaintiff on February 26 and 27, 2020. Based on these allegations, Plaintiff brought causes of action against Ferketic for “the deprivation of rights, privileges and immunities secured by the Constitution” under the First, Fifth and Fourteenth Amendments. The statute of limitations for these claims is two years. See Lake v. Arnold, 232 F.3d 360, 369 (3d Cir. 2000) (borrowing Pennsylvania's residual two-year statute of limitations, 42 Pa. C.S. § 5524, to apply to claims brought under § 1983). This action was commenced on May 17, 2023, more than three years after Fekertic gave the allegedly false testimony that is the basis for Plaintiff's claims. Even if Plaintiff had alleged some continuing violation of his civil rights on the part of Ferketic, the last possible time she could have done so is prior to her death on August 10, 2020. Thus, an amendment to add Ferketic's estate would be untimely even if related back to the original filing date in May of 2023.
As Plaintiff admits, he was unaware of Ferketic's death until June 14, 2023 and contacted her “estate manager” at some point thereafter. Thus, while it appears that Plaintiff may have provided notice to Ferketic's estate within the period provided by Rule 4(m), see Rule 15(c)(1)(C), the expiration of the statute of limitations precludes a claim against the estate even if any such amendment would relate back to the date when this action was filed.
Thus, as Plaintiff has not shown good cause for extending the time to effect service, and an amendment to name Ferketic's estate would be futile, Ferketic should be dismissed as a defendant from this case.
III. Conclusion
For the reasons discussed, above it is respectfully recommended that Defendant Kimberly Ferketic be dismissed from this case.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by October 3, 2023 Any party opposing the objections shall file a response by October 17, 2023. Failure to file timely objections will waive the right of appeal.