Opinion
1:19-CV-00284-SPB
01-11-2022
JOSEPH C. JAMIESON, Plaintiff v. ULLI KLEMM, BUREAU OF TREATMENT SERVICES; AND JOHN E. WETZEL; SECRETARY OF CORRECTIONS Defendants
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS
ECF NO. 58
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
1. Recommendation
Pending before the Court is Defendants' motion to dismiss this action for failure to substitute a party following Plaintiff's death and, alternatively, for failure to prosecute. See ECF No. 58. For the reasons stated below, it is respectfully recommended that Defendants' motion be GRANTED.
2. Background
Plaintiff Joseph Jamieson (“Plaintiff”) alleged that the Defendants, Ulli Klemm and John E. Wetzel, violated his rights to the free exercise of his religion through their failure to provide him with appropriate dietary items. See ECF No. 3, p. 3 (Complaint). His Complaint was docketed on October 7, 2019. Id. The Defendants answered the Complaint on December 26, 2019. ECF No. 16. The Defendants also filed a motion seeking leave to depose the Plaintiff, which the Court granted on December 27, 2019. See ECF No. 17; ECF No. 18. On January 31, 2020, the Defendants filed a motion to dismiss the Complaint due to the Plaintiff's refusal to testify at his deposition. ECF No. 23. On September 29, 2020, the Court denied the motion, permitted the Defendants to reschedule the Plaintiff's deposition, and warned the Plaintiff that a failure to appear and answer questions at the rescheduled proceeding would result in a dismissal of his case. ECF No. 47.
Plaintiff, who identified as a Native American and member of the Onedia (sic) Nation of the Six Nations, alleged that the Pennsylvania Department of Corrections' menu did “not adequately reflect, for religious purposes, the basic staples of traditional ceremonial foods that the Creator has provided for our use in the [Ceremonial Harvest Feast].” ECF No. 3, p. 3. His Complaint sought relief in the form of the provisioning of “wile rice, white/harmony corn, fish (salmon), yucca, yuca, salt pork, friend bread, etc.” Id.
Then, on February 10, 2021, the Defendants filed a Notice pursuant to Federal Rule of Civil Procedure 25(a) suggesting the death of the Plaintiff. ECF No. 52. On May 28, 2021, the Court administratively closed this case pending the Defendants' counsel's continuing efforts to serve notice of Plaintiff's death upon his next of kin and advise them of their opportunity to act as substitution party. ECF No. 53. Defendants' counsel notified the Court that attempts to locate next of kin who might be substituted for the Plaintiff under Rule 25 were unsuccessful. See ECF No. 54; ECF No. 56. On September 9, 2021, in one last attempt to locate a substitute, the Court authorized Defendants' counsel to utilize an alternative means of service of the suggestion of death upon Plaintiff's next of kin. ECF No. 57. The Defendants' instant motion to dismiss now states that those efforts were also unsuccessful. See ECF No. 58, ¶ 6.
3. Discussion and Analysis
Defendants seek dismissal of Plaintiff's claims both for failure to file a motion for substitution of the deceased plaintiff under Federal Rule of Civil Procedure 25(a)(1) and for failure to prosecute under Rule 41(b). As Plaintiff's claims must be dismissed pursuant to Rule 25, the undersigned will not address Defendants' separate argument regarding failure to prosecute.
Rule 25(a)(1) provides that “[i]f 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.” However, it further mandates that “[i]f the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed, ” although that 90-day period may be extended by a court under Fed.R.Civ.P. 6(b). Indyk v. Experian Information Solutions, Inc., 2006 WL 1582093, at *1 (D.N.J. June 2, 2006).
Rule 25's language is both clear and mandatory: if a motion for substitution is not made within 90 days after service of a statement noting the death of the plaintiff, then the Court must dismiss the action. See United States ex rel. Bartlett v. Ashcroft, 2014 WL 4187214, at *2 (W.D. Pa. Aug. 21, 2014) (noting mandatory nature of the provision). This matter has been dormant for almost a year. Defense counsel filed a letter noting the death of Plaintiff on February 10, 2021- more than eleven months ago. See ECF No. 52. Not only has no motion for substitution or request for an extension of time been filed, but Defendants' counsel has informed the Court that they have not heard from any representative of Plaintiff's estate in over seven months. See, e.g., ECF No. 54. Accordingly, because no motion for substitution pursuant to Rule 25 has been filed within 90 days of notice of the suggestion of the Plaintiff's death and no basis to extend the time under Rule 6(b) for good cause has been proffered, the plain language of Rule 25 applies and Plaintiff's claims should now be dismissed, with prejudice.
Although Rule 25(a)(1) uses the phrase “must be dismissed, ” the Rule does not specify whether the dismissal must be with prejudice. See Zanowick v. Baxter Healthcare Corp., 850 F.3d 1090, 1094 (9th Cir. 2017). Here, despite Defense counsel's repeated contact with the Plaintiff's next of kin, no one has expressed any interest in pursuing the claims Plaintiff raised in this action. Thus, it is recommended that dismissal with prejudice is the appropriate result here. Cf. Id. at 1092-93, 1096 (holding that dismissal without prejudice was consistent with Rule 25(a)(1) where deceased plaintiffs successors had missed the Rule 25(a)(1) deadline in federal court but were actively pursuing the same claims in state court); see also Freeman v. Troutt, 2011 WL 1584647, at *1 (M.D. Tenn. Apr. 27, 2011) (dismissing some of plaintiff s claims with prejudice under Rule 25(a)(1)); Grinblat v. 1200 Victory Mgmt. Corp., 2021 WL 2634765, at *1 (E.D.N.Y.June 25, 2021); Niemoczynski v. Upper Mount Bethel Twp. of Pennsylvania, 2017 WL 345639, at *7 n.7 (E.D. Pa. Jan. 23, 2017) (dismissing with prejudice).
4. Conclusion
For the reasons expressed above, Defendant's motion to dismiss (ECF No. 58) should be granted, with prejudice.