Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00188-WYD-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00188-WYD-CBS ESTATE OF WILLIAM E. HARVEY, through Administrator Joan Grace; and WILLIAM B. HARVEY, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

DEFENDANT UNITED STATES' REPLY IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT

The Defendant United States of America, by and through undersigned counsel, pursuant to Fed. R. Civ. P. 56 submits the following Reply in Support of its Motion for Partial Summary Judgment. PRELIMINARY STATEMENT The Estate of William E. Harvey and Joan Grace as the Personal Administrator must be dismissed from this action because: (1) proper substitution of parties was not made within 90 days of the date of the suggestion of death; (2) the claims of the estate are asserted by entities that do not exist; and (3) even if the claims are properly before the Court they must be dismissed as the Court lacks jurisdiction because of a failure to exhaust the estate's administrative remedies. As a result, the Estate of William B. Harvey and Ms. Grace as the Personal Administrator for the Estate must be dismissed from this matter.

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ARGUMENT I. The Estate of William E. Harvey, by and through Administrator Joan Grace must be dismissed pursuant to Fed. R. Civ. P. 25(a) as Plaintiff failed to substitute the Estate or a legally sufficient successor for the decedent within 90 days.

The survival claim asserted pursuant to Colo. Rev. Stat. 13-20-101 by the putative plaintiff Estate of William E. Harvey, through putative Joan Grace Administrator, should be dismissed with prejudice pursuant to Fed. R. Civ. P. 25(a) as the claims have been extinguished by Plaintiffs failure to substitute the estate within the 90 days permitted by Fed. R. Civ. P. 25(a) or to request an extension of time within which to substitute the estate. Plaintiffs' Response brief does not address this argument and it can be deemed confessed. Plaintiffs chose to file a suggestion of death. As Plaintiffs knew that no estate had been opened in the 90 days permitted by Rule 25, they could have filed a motion to enlarge the time pursuant to Fed. R. Civ. P. 6. They chose not to do so. Plaintiffs have yet to explain the reasoning behind the failure to substitute the estate after the filing of the suggestion of death. The advisory notes to Rule 25 provide that the 90-day requirement may be extended by Fed.R.Civ.P. 6. See Advisory Notes to Fed. R. Civ. P. 25(a). Thus, a party may seek an extension of time limitations contained in Fed.R.Civ.P. 25 upon a showing of excusable neglect. See Continental Bank v. Meyer, 10 F.3d 1293, 1297 (7th Cir. 1993). The District Court of the Virgin Islands addressed the issue of excusable neglect in Farrington v. Benjamin, 100 F.R.D. 474 (D.V.I. 1984). In Farrington, the spouse of a

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deceased plaintiff failed to move for substitution within the 90-day time period expressed in Rule 25(a). The district court explained: While it is clear that the 1963 amendments were designed to liberalize substitution after death, it is equally clear that Rules 6(b) and 25(a)(1) do not invite courts to enlarge arbitrarily the period within which motions for substitution will be considered. Despite ample opportunity, counsel for plaintiff has failed to offer any explanation for the tardiness of his motion for substitution. A fortiori, he has not demonstrated the excusable neglect prerequisite to enlargement of time under Rule 6(b)(2). To rule otherwise would be to render the 90-day requirement of Rule 25(a) a nullity. This is beyond our discretion. Id. Courts have generally allowed for substitution of parties after the limitations period has expired when the mistake was honest or the circumstances unusual. See U.S. v. Miller Bros. Const. O., 505 F.2d 1031, 1035 (10th Cir. 1974) (a fifteen day extension for filing substitution was acceptable due to the delay in initiating the proceedings to appoint an administrator); Gronowicz v. Leonard, 109 F.R.D. 624, 626 (S.D. N.Y. 1986) (allowing a 90 day extension for substitution of sole heir and executrix for the deceased). However, this discretion is not unfettered. Courts have expressly denied an exception to the limitations of Rule 25(a) where the failure to timely substitute was due to the neglect on the part of counsel or parties. In Zeidman v. General Acc. Ins. Co., 122 F.R.D. 160, 162 (S.D. N.Y. 1988) the district court determined that an extension of time to substitute parties was not warranted where counsel failed to file for timely substitution because his client was apprehensive about becoming an administratix. In addition, the Delaware district court determined that a 30-day extension of time was not appropriate where plaintiff's counsel failed to substitute a properly for more than a year after the plaintiff's suggestion of death was filed. Urban v. Talleyville Fire Co., 98 F.R.D. 634,

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637 (D.C. Del. 1983). In the present case, Plaintiffs have never asserted that the failure to substitute the estate was due to "excusable neglect." Plaintiffs' knew that the identity of the proper party to prosecute the survival action claim was an issue in early 2006. Magistrate Judge Shaffer expressed his concern regarding this issue in April of 2006. The Court: I guess my first question ­ Mr. Olsen, you say you're representing the estate. I mean, has a trustee or an executive been appointed by the State of California? No, Your honor, but in California1 it is not necessary if the estate is of minuscule size, so its only required that a family member step in and take that role. ... Well, see, what I'm trying to understand is I'm looking at Rule 17 and Rule 17(a) says that every action must be prosecuted in the name of the real party in interest. It says an executor or administrator, et cetera, et cetera, or a party authorized by statute may sue in that person's own name. Now at this point, I'm not exactly sure who has that authority to act on behalf of the estate. Who is that individual and what is their name? Your Honor, the ­ if you could hold on just flip second. The primary ­ there are two who are, and they're sisters. Their names are Joan Grace and Lisa Harvey. I'm sorry, Joan Grace and Elizabeth Harvey. ... Now as to the claim of the estate, you're going to need to tell me who specifically is acting on behalf of the estate . . .

Mr. Olsen:

The Court:

Mr. Olsen:

The Court:

Plaintiffs' initially filed an estate in California, the locus in which Mr. Harvey had his domicile, had personal property to be distributed, and passed away. See attachment I to Motion for Summary Judgment. Plaintiffs now assert that the estate is properly opened in Colorado and that the appointment of Ms. Grace under Colorado law is controlling. See Response to Motion for Summary Judgment at ¶ 1. 4

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See Status Conference of April 26, 2006, pgs. 2 - 4. (Attached as Exhibit A). It is clear that under Colorado Law a survival action must be prosecuted by an estate. See Espinoza v. O'Dell, 633 P.2d 455, 466 ( Colo. 1981). Thus, to properly preserve this claim after the death of Mr. Harvey, an estate and a personal representative properly appointed under Colorado law were required to be substituted pursuant to Fed. R. Civ. P. 25(a)(1). This did not occur. Thus, the claims of the estate were extinguished by operation of Fed. R. Civ. P. 25 and must be dismissed from this action. II. Plaintiffs' argument that the survival claim under Colo. Rev. Stat. § 13-20-101, are preserved by operation of the relation back doctrine is not well supported by the law.

Plaintiffs do not dispute that they (1) failed to substitute the estate within the 90 days permitted by Fed. R. Civ. P. 25(a); (2) failed to request an extension of time within which to do so pursuant to Fed. R. Civ. P. 6; and (3) their Response fails argue or even assert "excusable neglect" which prevented them from timely substitution. Plaintiffs sole argument in rebuttal to the Motion for Summary Judgment is that the "relation back" doctrine contained in Colo. Rev. Stat. 15-12-701 saves these claims from dismissal. This argument is not well grounded in Colorado law. Plaintiffs rely on Hill v. Martinez, 87 F. Supp. 1115 (D.Colo. 2000) to support their claim. This case is factually distinguishable. In Hill, the parents of a decedent filed an Amended Complaint asserting a survivor action one day before the expiration of the statute of limitations, but nearly a month prior to the time they were actually appointed executors of their son's estate. The Court concluded that because the parents had the capacity to sue on their son's behalf and were appointed personal representatives of their 5

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sons estate that their filing of an amended Complaint was rendered valid by the relation back provisions of § 15-12-701. The Amended Complaint in Hill was filed prior to the expiration of statute of limitations. Thus, the actions of the putative executors could relate back to a valid an existing claim at the time of the filing of the Amended Complaint. Here in contrast, the Amended Complaint was filed long after the survival claim expired. There was no valid claim to which the action of Ms. Grace could relate back. Thus, Hill does not support Plaintiffs' claim that the relation back doctrine allows revival of an expired claim.2 As the claim no longer exists, it cannot be revived by the relation back doctrine and the partial motion for Summary Judgment should be granted. III. The claims seeking damages pursuant to Colo. Rev. Stat. § 1320-101, must be dismissed from this action pursuant to Fed. R. Civ. P. 12(b)(1) for failure to administratively exhaust.

To the extent that the Court determines that a valid estate now exists or that the untimely claims relate back, the survival action claim contained in the Second Amended Complaint must still be dismissed based on a failure to exhaust these claims. Exhaustion
of administrative remedies is a jurisdictional prerequisite to bringing suit under the FTCA. See Pipkin v. United States, 951 F.2d 272, 273 (10 th Cir. 1993).

This concept can be compared to that required under Rule 17. Substituting a party under Rule 17 "is intended to prevent a forfeiture when determination of a proper party is difficult or when an understandable mistake has been made. It does not mean, for example, that following an airplane crash in which all aboard will killed, and action can be filed in the name of John Doe (a fictitious person) as personal representative of Richard Roe (another fictitious person), in the hope that at a later time the attorney filing the action may substitute the real name of the real personal representative of a real victim an have the benefit of suspension of the limitation period . . . " See Advisory Committee Notes, Rule 17. Just as one cannot use a legal fiction to evade Rule 17, it should also not be permitted under Rule 25. 6

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The procedural requirements of the FTCA are specific and straightforward. 28 U.S.C. § 2675(a) states that: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission . . . unless the claimant shall have first presented the claim to the appropriate Federal agency . . (emphasis added). Thus, a plaintiff is barred from bringing a lawsuit in federal court until the individual or entity has exhausted administrative remedies. Dunlap v. Harper, 188 F.3d 1195, 1199 (10 th Cir. 1999). This means, unequivocally, that a plaintiff must exhaust administrative remedies before pursuing judicial action. Burkins v. United States, 865 F. Supp. 1480, 1490 (D.Colo. 1994) (emphasis added). 28 C.F.R. § 14.3(c) provides guidance on who may bring such an administrative claim. This regulation provides that "a claim based on death may be presented by the executor or administrator of the decedent's estate, or by any other person legally entitled to assert such a claim in accordance with applicable state law." The applicable state law in this matter would be

Colo. Rev. Stat. § 13-20-101 which provides that an estate is the proper party to bring a
survival action. Plaintiffs do not dispute that the putative Boulder Estate of William Harvey did not exist in 2005 when the FTCA claim was allegedly exhausted. As the putative Colorado probate estate, 3 was filed on July 12, 2007, Plaintiffs cannot dispute this fact. It is

It is of interest that the probate estate was filed in Boulder, Colorado, as this county has no connection to the putative estate. The only nexus ever asserted by Plaintiffs between the estate and the state of Colorado is the instant lawsuit, which is filed in Denver, Colorado. Plaintiff William E. Harvey never lived in Boulder, Colorado. He had no assets during life, and indeed at the present time the estate has no assets in 7

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undisputed that the putative Boulder Estate has never filed a Notice of Claim under the FTCA. As a result, pursuant to 28 C.F.R. § 14.3(c) no claimant has filed a valid notice of claim. No valid notice of claim was filed by the claimant seeking relief in the instant law suit ­ the Colorado estate ­ prior to the filing of the instant complaint and the complaint should be dismissed for lack of jurisdiction.

No Tenth Circuit precedent has been found on this issue. The Eighth Circuit has
considered the issue in the context of a class action. In Lunsford v. United States, 570 F.2d 221, 224 (8 th Cir. 1977), the Eighth Circuit upheld a district court's order of dismissal of plaintiffs who could not establish authority to act as agents and present claims on behalf of unnamed class members. The Court noted that "the procedure of administrative exhaustion established under the FTCA clearly presupposes the existence of an identifiable claimant or claimants with whom the government can negotiate a settlement on the basis of the sum certain stated in the administrative claims." Id. at 225. See also Mesaros ex rel. Mesaros, Docket No. 8:05-cv-1214-T-30TGW, 2006 WL 1528939 *3 (M.D. Fla, June 2, 2006) (finding a plaintiff who was not authorized under Idaho law to file an administrative claim on behalf of estate lacked standing to bring suit); but see Knapp v. U.S., 844 F.2d 376379 (6th Cir. 1988) (failure to file compliant FTCA

Boulder, Colorado. Colo. Rev. Stat. § 15-12-201 provides that venue for appointment proceedings is appropriate in the (a) county where the decedent had his domicile or residence at the time of death; or (b) if the decedent was not domiciled in nor a resident of this state in any county where property of the decedent was located at the time of his death. An appointment of a personal representative by the Boulder County probate court - which has no connection with the Estate of William Harvey - is a nullity. The Court at a minimum should require Plaintiffs to establish that putative Boulder probate estate in Colorado is valid under Colorado law. 8

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notice not jurisdictional). However, the Sixth Circuit's decision in Knapp is distinguishable from the present case. In Knapp, the claimant was the duly qualified personal representative of her husband's estate at the time the action was filed. Here, it is not clear that Ms. Grace is a duly qualified personal representative of any valid Estate, and she clearly was not at the time the amended complaint was filed. Thus, the rationale of the Eighth Circuit is more persuasive and should be adopted by this Court. Conclusion For the foregoing reasons, Defendants respectfully request that partial summary judgment be entered in against the Plaintiff Estate of William Harvey and in favor of the Defendant United States.
Dated this 8 th day of August, 2007. Respectfully Submitted, TROY A. EID United States Attorney

s/ Elizabeth A. Weishaupl Elizabeth A. Weishaupl Kurt J. Bohn Assistant United States Attorneys 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0404 Email: [email protected]

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CERTIFICATE OF MAILING I hereby certify that on this 8th day of August, 2007, I electronically filed the foregoing Reply in Support of Partial Motion for Summary Judgment with the Clerk of the Court using the CM/ECF system which will send notification of such filing to: John R. Olsen [email protected] Elizabeth Weishaupl [email protected] Kurt J. Bohn [email protected]

Agency Counsel, via U.S. mail: Christopher B. Synsvoll, Esq. 5880 State Highway 67 South FCC Legal Services, P.O. Box 8500 Florence, CO 81226

s/ Elizabeth A. Weishaupl Elizabeth A. Weishaupl Office of the U.S. Attorney

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