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Mizukami v. Buras

United States Court of Appeals, Fifth Circuit
Dec 29, 1969
419 F.2d 1319 (5th Cir. 1969)

Summary

holding that where defendant predeceased filing of action the rule allowing substitution of a party is inapplicable as all claims against the deceased defendant are extinguished.

Summary of this case from Foster v. Meeks

Opinion

No. 27440.

December 29, 1969.

Robert Scott McIntosh, II, New Orleans, La., for plaintiffs-appellants.

M.N. Grossel-Rossi, R.A. Redwine of Leach, Grossel-Rossi Paysse, New Orleans, La., for defendants-appellees.

Before GEWIN, COLEMAN and DYER, Circuit Judges.


Appellants, citizens of Japan, seek review of an order of dismissal in a diversity action filed by them in the United States District Court for the Eastern District of Louisiana. The suit was initiated against Peter R. Buras and his insurance carrier, Connecticut Fire Insurance Company, to recover for the death of Shasaku Mizukami. As to Peter R. Buras, the court found that he was deceased at the time the suit was filed and denied substitution of his heirs as parties. The court dismissed the action against the insurance carrier for failure to join an indispensable party and for lack of jurisdiction. We affirm.

On October 15, 1965, Shasaku Mizukami was struck and killed by a pickup truck owned and operated by Peter R. Buras. The instant action was filed on October 17, 1966, naming Buras and Connecticut Fire Insurance Company as defendants. Service on Buras was never accomplished since he had died in July of 1966.

Appellants moved to substitute the heirs of Peter R. Buras as parties defendant. Rule 25(a)(1) F.R.Civ. Pro., allows substitution for a deceased party where the claim is not extinguished by his death. However, as the district court noted, the rule contemplates substitution for someone who had been made a party before his death. It is not available to the appellants in the present case since Buras predeceased the filing of the action. Chorney v. Callahan, 135 F. Supp. 35 (D.Mass. 1955).

The court's dismissal of the claim against Connecticut Fire Insurance Company for lack of subject matter jurisdiction was also proper. That company's policy with Peter R. Buras was limited in amount to $5,000 for each person injured and $10,000 for each accident. Thus, the amount in controversy does not exceed $10,000 as is required to support jurisdiction grounded on diversity of citizenship. 28 U.S.C.A. § 1332.

The judgment is affirmed.


Summaries of

Mizukami v. Buras

United States Court of Appeals, Fifth Circuit
Dec 29, 1969
419 F.2d 1319 (5th Cir. 1969)

holding that where defendant predeceased filing of action the rule allowing substitution of a party is inapplicable as all claims against the deceased defendant are extinguished.

Summary of this case from Foster v. Meeks

finding that substitution for deceased party where claim is not extinguished by his death was not available to plaintiff in death action where defendant predeceased filing of action

Summary of this case from Schlumpberger v. Osborne

finding that Rule 25 "contemplates substitution for someone who had been made a party before his death."

Summary of this case from Bridges v. Enterprise Products Co., Inc.

observing that if a party dies before suit is filed, then substitution under Rule 25 is unavailable and dismissal is appropriate

Summary of this case from Hammond v. Federal Bureau of Prisons

In Mizukami, which was a case from the U.S. District Court for the Eastern District of Louisiana, the Fifth Circuit Court of Appeals said: "However, as the district court noted, the rule contemplates substitution for someone who had been made a party before his death.

Summary of this case from Garlock Sealing Tech. v. Pittman
Case details for

Mizukami v. Buras

Case Details

Full title:Shasaku MIZUKAMI, Gosaku Mizukami, et al., Plaintiffs-Appellants, v. Peter…

Court:United States Court of Appeals, Fifth Circuit

Date published: Dec 29, 1969

Citations

419 F.2d 1319 (5th Cir. 1969)

Citing Cases

Martino v. Am. Sec. Ins. Co.

Id. at 4 (citing Mizukami v. Buras, 419 F.2d 1319, 1320 (5th Cir.…

LN Mgmt. v. JPMorgan Chase Bank

In 1969, the Fifth Circuit confronted a lawsuit filed by the Mizukamis, who were citizens of Japan, against…