Staples v. Brookdale Senior Living Center Inc.

RESPONSE in Opposition re MOTION to Substitute Party

M.D. Fla.February 11, 2019

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION SUSANNE STAPLES, Plaintiff/Claimant, v. CASE NO. 5:17-CV-00594-JSM-PRL BROOKDALE SENIOR LIVING INC., Defendant/Respondent. / DEFENDANT/RESPONDENT’S RESPONSE IN OPPOSITION TO MOTION TO SUBSTITUTE PROPER PARTY Defendant/Respondent Brookdale Senior Living Inc. (“Brookdale”), by and through its undersigned counsel, hereby responds in opposition to the Motion to Substitute Proper Party (the “Motion to Substitute”) filed by Bruce Staples, Personal Representative of the Estate of Susanne Staples, (the “Representative”).1 As more fully set forth below, the Motion to Substitute should be denied for failure to comply with Federal Rule of Civil Procedure 25. Moreover, the Representative has failed to demonstrate “excusable neglect” for his failure to timely file a Motion to Substitute or seek an extension of the deadline. Accordingly, the Representative’s Motion to Substitute is untimely, and this matter should be dismissed. 1 The Representative filed the Motion to Substitute in the District Court as well as the Arbitration. However, the District Court stayed and administratively closed this case on December 22, 2017, and the Representative has not filed a motion to vacate the stay or to reopen the District Court proceedings. Accordingly, while Brookdale has filed this Response in both the District Court and the Arbitration out of an abundance of caution, it maintains that this issue should be decided in Arbitration pursuant to this Court’s Order compelling arbitration and the parties’ Joint Motion to Compel Arbitration, which specifically stated that the “Parties agree that Staples’ claims in this matter are subject to the [Arbitration] Agreement and that the Agreement is enforceable.” See Dkt. 5 at p. 2. Case 5:17-cv-00594-JSM-PRL Document 9 Filed 02/11/19 Page 1 of 13 PageID 81 2 I. BACKGROUND 1. On September 14, 2018, undersigned counsel learned that Plaintiff/Claimant Susanne Staples (“Plaintiff”) had passed away and notified Plaintiff’s counsel by email. 2. On October 1, 2018, counsel for the undersigned served a statement noting the death of Plaintiff on the record in the Arbitration of this matter. See Exhibit 1 (email to the Arbitrator and Plaintiff’s counsel stating: “The plaintiff unfortunately passed away recently.”). 3. The statement of death attached as Exhibit 1 was served on the Arbitrator and parties in the same manner as pleadings and filings have been served throughout the Arbitration. See Exhibit 2 (collective exhibit of the Arbitrator’s, Plaintiff’s counsel’s, and Brookdale’s counsel’s emails serving papers and pleadings in the arbitration). 4. Thereafter, in response to the October 1 statement of death, Plaintiff’s counsel stated that “[w]e’re in the process of preparing a Rule 25 motion, but given the circumstances will be requesting a stay of the proceedings.” See Exhibit 3. 5. Also on October 1, 2018, Plaintiff’s counsel filed a Motion to Stay Proceedings (“Motion to Stay”) stating: “A Preliminary Arbitration Hearing in this matter is currently set for December 4, 2018. … Claimant seeks a stay of the proceedings for 90 days to permit the filing of a Rule 25 Motion for Substitution.” See Exhibit 4 (Motion to Stay at ¶ 6) (emphasis added). Brookdale did not oppose the stay. See id. 6. Neither the October 1, 2018 email from Plaintiff’s counsel nor the Motion to Stay notified Brookdale of the anticipated Representative. See Exhibits 3 and 4. Case 5:17-cv-00594-JSM-PRL Document 9 Filed 02/11/19 Page 2 of 13 PageID 82 3 7. On October 1, 2018, the Arbitrator granted the Motion to Stay. See Exhibit 5. The stay expired on December 30, 2018. 8. On January 15, 2019, a representative of the American Arbitration Association (“AAA”) requested an update on the status of the matter. In response, the Arbitrator stated “[w]e should be ready to close the case now and as soon as we find out, I will issue an Orde[r].” See Exhibit 6. 9. Later in the day on January 15, 2019, Plaintiff’s counsel sent undersigned counsel a proposed “Suggestion of Death and Motion to Substitute Proper Party.” See Exhibit 7. 10. In the proposed “Suggestion of Death and Motion to Substitute Proper Party,” Plaintiff’s counsel represented that “Bruce Staples, husband, received his letters testamentary as Personal Representative of the Estate of Susanne Staples on December 10, 2018, which are attached hereto as Exhibit A.” See Exhibit 7. The attached “Letters of Administration” show they were electronically filed and served on the Representative’s probate counsel on December 10, 2018. See Exhibit 7; see also Exhibit 9 (Docket of Probate Division Case No. 2018-000748). 11. Upon receiving the proposed motion, undersigned counsel emailed Plaintiff’s counsel stating: “My client and I had assumed this matter was closed when no motion was filed within 90 days. Could you please advise what caused the delay so we can consider the request?” See Exhibit 8. 12. Plaintiff’s counsel responded that: We didn’t receive the letters testamentary until today. It must be filed as an exhibit to the motion, so it would have been impossible to file earlier. Further, the rule says that the filing of a Rule 25 Case 5:17-cv-00594-JSM-PRL Document 9 Filed 02/11/19 Page 3 of 13 PageID 83 4 notice of death triggers the 90 day window to file the motion to substitute, but the notice of death hasn’t been filed yet. See id. 13. Undersigned counsel thereafter informed Plaintiff’s counsel that “[i]f the below are the only reasons for the delay, we have to object.” Plaintiff’s counsel responded: “Very well.” See id. 14. Plaintiff’s counsel subsequently filed the instant Motion to Substitute on January 27, 2019 in both the District Court and Arbitration.2 2 To the extent the Representative asserts (without citation to authority) that this matter should not be decided in Arbitration because he was not a signatory to the arbitration agreement, this argument should be rejected. Under Florida law, a decedent’s estate “stand[s] in the shoes of the decedent for purposes of whether the defendant is liable and [is] bound by the decedent’s actions and contracts....” Laizure v. Avante at Leesburg, Inc., 2013 Fla. LEXIS 249, at 23 (Fla. 2013) (holding that arbitration agreements signed by decedents are enforceable in wrongful death actions); see also Kong v. Allied Prof'l Ins. Co., 2014 U.S. App. LEXIS 8762, 16 (11th Cir. 2014) (enforcing arbitration agreement against non-signatory to insurance policy and noting that “Florida law treats arbitration as a ‘remedial mechanism’ that is included in any assignment”); Estate of Malkin by Guarnero v. Sail Funding Tr. II, 2016 WL 8729959, at *7 (S.D. Fla. Feb. 2, 2016) (compelling estate to arbitration pursuant to financing agreement and noting that the estate “fails to support the assertion that the Estate should not be bound to a contract executed by its decedent with citation to pertinent authority and, therefore, is unable to sway the Court”). Similarly, in Sheet Metal Workers Local No. 2 v. Silgan Containers Mfg. Corp., 2012 U.S. App. LEXIS 18197, at 7 (8th Cir. 2012), the court held that the estate was bound by the arbitration agreement in the employee’s collective bargaining agreement, reasoning that: Silgan argues that, since the decedent's estate was not a signatory to the arbitration agreement, the agreement does not bind the estate, and the estate may thus choose to pursue its claim outside of mandatory arbitration. This argument rests on a flawed premise. The decedent's estate stands in the decedent's shoes and has the same rights and obligations as the decedent did while he was alive. Thus, just as an employee must submit to mandatory arbitration in life, so to must the estate of that employee after his or her death. Sheet Metal Workers Local No. 2, 2012 U.S. App. LEXIS 18197 (internal citations omitted). Case 5:17-cv-00594-JSM-PRL Document 9 Filed 02/11/19 Page 4 of 13 PageID 84 5 II. ARGUMENT A. Legal Standard Federal Rule 25(a)(1) requires that a motion for substitution be filed ‘‘within 90 days after service of a statement noting the death’’ of a party. Fed.R.Civ.P. 25(a)(1). If such a motion is not filed within 90 days, the Rule states that ‘‘the action by or against the decedent must be dismissed.” Id. (emphasis added). A “legally sufficient statement of death on the record” is required to trigger the 90-day deadline. See Schmidt v. Merrill Lynch Trust Co., 2008 U.S. Dist. LEXIS 50435 (M.D. Fla. June 30, 2008). A legally sufficient statement of death under Rule 25(a) must satisfy two conditions: “First, a formal statement of death must be placed ‘on the record’ by one with the authority to do so. Second, the statement of death must be properly served pursuant to Rule 25(a)(3).” Id. The suggestion may be filed by either a party, or by a representative of the deceased party. See id.; see also Fed.R.Civ.P. 25(a)(1). Rule 25 does not set forth any specific requirements as to the contents of the statement except to state that an identified party has died. See Fed.R.Civ.P. 25(a)(1) B. Brookdale Properly Served the Statement of Death and the Motion to Substitute Is Untimely The Representative contends that the Motion to Substitute is timely because the Representative was not served with a statement of death within the meaning of Rule 4. Specifically, the Representative asserts that the undersigned counsel’s October 1, 2018 email was not sufficient under Rule 25 to constitute a formal suggestion of death. See Motion to Substitute at p. 4. The Representative further asserts that, even if the email is Case 5:17-cv-00594-JSM-PRL Document 9 Filed 02/11/19 Page 5 of 13 PageID 85 6 sufficient, it did not trigger the 90-day period under Rule 25 because it was not served on the Representative. Id. at p. 6 (citing, e.g., Atkins v. City of Chicago, 2008 U.S. App. LEXIS 23706 (7th Cir. 2008)). Contrary to the Representative’s assertion, there is no requirement that a party file a suggestion of death in any particular form. “Rule 25(a)(1) does not require that such statements include magic words or come in specific forms.” Coleman v. Sys. Dialing LLC, 2015 U.S. Dist. LEXIS 169509, at *8 (S.D.N.Y. Dec. 28, 2015). In fact, the statement need not be “labeled a ‘suggestion of death’ or ‘statement of death.’” Id. Rather, Rule 25 only requires “service of a statement noting the death.” Fed.R.Civ.P. 25(a)(1). Here, the undersigned’s October 1, 2018 email noted the Plaintiff’s death on the record in the Arbitration and informed the Arbitrator that the parties would likely be staying the arbitration. This is a sufficient statement noting the Plaintiff’s death on the record. See Owner-Operator Indep. Drivers Ass’n v. Landstar Sys., 2012 U.S. Dist. LEXIS 184416 (M.D. Fla. July 24, 2012) (noting that Court could consider email to party as sufficient statement of death); see also Coleman, 2015 U.S. Dist. LEXIS 169509, at *8 (holding letter motion which “began by memorializing [the party’s] death” sufficient notice under Rule 25). Moreover, the statement of death was properly filed on the record in the Arbitration, as this matter was compelled to arbitration and, under Florida law, a decedent’s estate “stand[s] in the shoes of the decedent for purposes of whether the defendant is liable and [is] bound by the decedent’s actions and contracts....” Laizure, 2013 Fla. LEXIS 249 at 28 (holding that arbitration agreements signed by decedents are Case 5:17-cv-00594-JSM-PRL Document 9 Filed 02/11/19 Page 6 of 13 PageID 86 7 enforceable in wrongful death actions). The undersigned counsel’s October 1, 2018 notice was served following the parties’ agreed practice in the Arbitration and led directly to Plaintiff’s counsel filing a Motion to Stay utilizing the same email record in the Arbitration. See Exhibit 2. In response to the statement of death, the Motion to Stay was filed for the express purpose “to permit the filing of a Rule 25 Motion for Substitution.” See Exhibit 4. In Coleman, the court addressed an analogous situation and held that a letter motion “memorializing” a party’s death and seeking to adjourn an initial pretrial conference was a “sufficiently formal notice to the Court and defendants of [the] death to qualify as the statement of death triggering Rule 25’s 90-day substitution period.” Coleman, 2015 U.S. Dist. LEXIS 169509, at *7-8. In reaching this conclusion, the Southern District of New York held that: Rule 25(a)(1) does not require that such statements include magic words or come in specific forms. That the letter motion was not labeled a "suggestion of death" or "statement of death" or because it failed to use Official Form 4 does not render the notice of death therein impermissibly informal or inoperative. Nor does the fact that the statement of death accompanied a request for adjournment nullify the statement of death; indeed, the death is what prompted the request for adjournment in the first place. The letter motion was not, as the plaintiff argues here, a "[m]ere reference to a party's death in court proceedings or pleadings," Grandbouche, 913 F.2d at 836; rather, it was a "statement noting the death" of Ornette Coleman, properly served by electronic means, consistent with the terms of Rule 25(a). Accordingly, the plaintiff was required to make a motion to substitute within the next 90 days. Id. at *8. The same analysis applies in the present case. The undersigned’s October 1, 2018 email was a statement noting the death of the Plaintiff, properly served by Case 5:17-cv-00594-JSM-PRL Document 9 Filed 02/11/19 Page 7 of 13 PageID 87 8 electronic means, and was not a “[m]ere reference to a party’s death in court proceedings or pleadings.” Grandbouche v. Lovell, 1990 U.S. App. LEXIS 15575, 2 (10th Cir. 1990). Rather, it was an affirmative statement noting the death on the record in the Arbitration where this case is pending. Moreover, the statement of death was properly served on the parties and was not required to be served on the Representative. Although a statement of death must generally be served on nonparties, this general rule does not apply when the statement is filed by the opposing party and the decedent’s counsel does not identify the representative. See George v. United States, 2001 U.S. Dist. LEXIS 23937, 4 (D. Conn. 2001) (holding that statement was not defective for failure to serve representative where defendant did not have notice of the pending representative as of the date it filed the statement); see also Yonofsky v. Wernick, 1973 U.S. Dist. LEXIS 12532, 12 (S.D.N.Y. 1973) (suggestion of death served by defendant was not defective where it was served on plaintiff’s counsel and a representative had not yet been identified). Notably, the primary case relied upon by the Representative specifically recognizes the exception articulated in George, stating: It is true that George v. United States, 208 F.R.D. 29, 32 (D.Conn.2001), holds that if the suggestion of death is filed by the opposing party, that party is not required to serve a successor or representative if he doesn't know who that is, and so the 90-day period starts to run from the filing of the suggestion. The other side can protect itself by telling the moving party who the successor or representative is, and if necessary filing a motion for an extension of time for filing a motion to substitute that person for the decedent. Atkins v. City of Chicago, 2008 U.S. App. LEXIS 23706 (7th Cir. 2008). In fact, the circumstances in George are almost identical to those presented here. In George, the plaintiff died during the pendency of the lawsuit. George, 2001 Case 5:17-cv-00594-JSM-PRL Document 9 Filed 02/11/19 Page 8 of 13 PageID 88 9 U.S. Dist. LEXIS 23937. The defendant filed a suggestion of death, but did not serve it on the surviving spouse because the defendant had not yet been notified of her pending appointment as the representative. Id. at 4-5. The plaintiff claimed the suggestion of death was insufficient based on the failure to serve the surviving spouse. Id. The court disagreed, holding that “[b]ased on the record before this Court, there is no indication that defendant had notice of the pending appointment of Shirley George on August 8, 2000, the date defendant filed the Suggestion of Death. Therefore, the Suggestion of Death was not defective and the 90 day time period began with the filing of the Suggestion of Death.” Id at 6. Accordingly, because a statement noting the Plaintiff’s death was filed on the record in the Arbitration October 1, 2018 and properly served, the deadline for filing the Motion to Substitute was December 30, 2018. C. The Representative Has Not Demonstrated Excusable Neglect The Representative filed the instant motion on January 27, 2019, almost a month after the December 30, 2018 deadline. Neither Plaintiff’s counsel nor the Representative filed a motion for extension of the deadline or otherwise advised the parties or Arbitrator of the status in the interim. Therefore, the Representative must show that the failure to timely file the Motion to Substitute was the result of excusable neglect. See Fed.R.Civ.P. 6(b)(1)(B). As an initial matter, the Representative claims that the court’s decision in Lizarazo v. Miami-Dade Corrections and Rehab. Dept., 2017 U.S. App. LEXIS 26995 (11th Cir. 2017), stands for the proposition that the “stay entered by the arbitrator effectively extended the Rule 25 period.” Motion to Substitute at p. 8. This is not the Case 5:17-cv-00594-JSM-PRL Document 9 Filed 02/11/19 Page 9 of 13 PageID 89 10 holding in Lizarazo. In Lizarazo, a suggestion of death was filed on November 22, 2016, such that the deadline to file a motion for substitution under Rule 25 expired on February 27, 2017. Lizarazo, 2017 U.S. App. LEXIS 26995 at 1. On December 29, 2016, the court granted a ninety-day stay of the proceedings, stating that the case would be reopened “if a proper motion is made within 90 days hereof.” Id. Based on this order, the stay would have expired on March 29, 2017. The representative filed both a motion for extension and motion to substitute prior to March 29, 2017, but the trial court denied the motions as untimely, finding that the deadline ran from the suggestion of death despite the court’s subsequent order. Id. at 6-8. On appeal, the Eleventh Circuit held that the trial court applied the incorrect standard because it should have considered whether the stay extended the Rule 25 period to March 29 and whether the delay was the result of “excusable neglect” in light of the court’s order. Id. at 8. Accordingly, at best, the court’s holding in Lizarazo supports Brookdale’s argument that the deadline to file the Motion to Substitute was December 30, 2018, the expiration of the stay entered by the Arbitrator. This is especially true given that Plaintiff’s counsel’s Motion to Stay was filed in response to the statement of death on the record and for the express purpose to “permit the filing of a Rule 25 Motion for Substitution.” See Exhibit 4 (Motion to Stay at ¶ 6).” Based on the plain language of the Motion to Stay and Plaintiff’s counsel’s contemporaneous email, the clear intent was to stay the Arbitration that was scheduled for December 2018 to allow the Representative the requisite 90 days to file the Motion to Substitute. See Exhibits 3 and Case 5:17-cv-00594-JSM-PRL Document 9 Filed 02/11/19 Page 10 of 13 PageID 90 11 4. Plaintiff’s counsel’s and the Representative’s arguments that they did not believe the 90-day deadline had been triggered are simply incompatible with this record. Further, the Representative has not shown excusable neglect with respect to his receipt of the Letters of Administration. The Representative claims that the “four-month gap” in receiving the letters is “not unusual” and that the probate proceedings are “a lengthy process, especially during the holiday season.” Motion to Substitute at p. 8. However, the docket from the probate case shows that the probate case was not filed until December 3, 2018, and the Letters of Administration were entered on December 10, 2018. See Exhibit 9. In fact, the probate process took just one week, the Letters of Administration were issued 20 days before the deadline to file the Motion to Substitute, and there is no explanation for Plaintiff’s counsel’s assertion that the Letters of Administration were not received until January 15, 2019 or why this delayed the filing. To the contrary, the original proposed motion to substitute that Plaintiff’s counsel sent undersigned counsel stated that the Letters of Administration were received by the Representative on December 10, 2018, which is consistent with the probate docket showing the Letters of Administration were electronically entered in the e-filing system, which would have sent notice to the Representative’s probate counsel on the same date. These facts do not demonstrate excusable neglect as defined by the courts. See Russell v. City of Milwaukee, 338 F.3d 662, 667-68 (7th Cir. 2003) (finding no excusable neglect where the administrator of the estate was appointed in March 2001 before the expiration of the April 1, 2001 deadline for filing substitution) and compare with George, 2001 U.S. Dist. LEXIS 23937 (finding excusable neglect where representative filed Case 5:17-cv-00594-JSM-PRL Document 9 Filed 02/11/19 Page 11 of 13 PageID 91 12 probate case just 4 days after decedent’s death but was not appointed executor until almost four months later). Moreover, Brookdale will be prejudiced by reopening this case at this late stage. The arbitration was originally scheduled in December 2018, and Brookdale, its client, and the Arbitrator all understood the case was due to be dismissed when the AAA requested an update on January 15, 2019. See Exhibits 6 and 8. Even then, the Representative delayed an additional two weeks, until January 27, 2019, to file the Motion to Substitute. As of the date of this filing, Brookdale believed this case was closed 43 days ago, on December 30, 2018. See Carruth v. Smyth, 2018 U.S. Dist. LEXIS 21531, *13 (N.D. Ala. Feb. 9, 2018) (holding “there is plenty of prejudice caused by Plaintiff’s past delay in substituting another party for [the defendant]”). III. CONCLUSION WHEREFORE, for the foregoing reasons, Brookdale respectfully requests that the Arbitrator and/or Court deny the Motion to Substitute Proper Party and dismiss this action. Respectfully submitted, /s/Catherine H. Molloy Catherine H. Molloy Florida Bar No. 003500 Email: molloyk@gtlaw.com GREENBERG TRAURIG, P.A. 101 E. Kennedy Boulevard Suite 1900 Tampa, FL 33602 Telephone: (813) 318-5700 Fax: (813) 318-5900 Attorney for Respondent Case 5:17-cv-00594-JSM-PRL Document 9 Filed 02/11/19 Page 12 of 13 PageID 92 13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 11, 2019, I emailed the foregoing to the Arbitrator and parties in the Arbitration and electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to: Jay P. Lechner, Esquire Jason M. Melton, Esquire WHITTEL & MELTON, LLC One Progress Plaza 200 Central Avenue, #400 St. Petersburg, FL 33701 Pleadings@theFLlawfirm.com lechnerj@theFLlawfirm.com kmoran@theFLlawfirm.com //s/Catherine H. Molloy Attorney TPA 512487877v1 Case 5:17-cv-00594-JSM-PRL Document 9 Filed 02/11/19 Page 13 of 13 PageID 93