Curtis V. Gomez, Chief Judge of the District Court of the Virgin Islands, recently heard a motion by the plaintiffs to substitute a party in the matter of Richards v. Marshall.  The action was initiated in 2009. Plaintiffs Barbara Richards and several other tenants ("Tenants") alleged that they sustained various injuries after being exposed to toxic mold allegedly present in a building owned by the defendants, Alfred Marshall and Sydney Katz, doing business as A & S Realty Associates (“A & S Realty”).

In the fall of 2009, the complaint was amended to name several others including Tiffanne Sutton as an additional plaintiff. On May 20, 2012, A & S Realty filed a suggestion of death, in which they gave notice of the death of Sutton, but didn’t include any affidavits or exhibits.

The plaintiff tenants responded to the suggestion of death by filing a motion to quash, asserting that it was not submitted in compliance with Federal Rule of Civil Procedure 25. That rules states:

If 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. If 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.  

The Court ordered the parties to submit evidence as to whether Sutton was alive or dead. The plaintiffs produced a copy of Sutton’s death certificate. They also moved to substitute her for an as-yet unidentified personal representative. The plaintiffs  moved to withdraw their motion to substitute, noting that a personal representative had not yet been appointed on behalf of Sutton’s estate.
At a hearing on the plaintiff’s  motion to substitute, they informed the Court that, at that time, there was no personal representative for Sutton’s estate. They also told the court that they had no good cause for the delay in informing the court of Sutton’s death, and in having a personal representative appointed for her estate.

Chief Judge Gomez noted that these maneuvers might appear to be trivial, however, in order for a party to be substituted with another, there must be some other identifiable person or entity that will take the place of the former party. In this case it had been nearly a year since A & S Realty first filed its suggestion of death and more than five months since it moved to substitute Sutton out of the case. In that time, no person was identified who might stand in Sutton’s place to litigate her claims; however, the Chief Judge observed that the plaintiffs nonetheless moved for the substitution of Sutton. Absent any indication of who might be substituted for Sutton, it appeared that the motion was premature. Consequently, it was denied.

With the start of the trial less that two months away and no indication as to when, if at all, a representative would be appointed for Sutton, the Chief Judge had a decision to make: move forward on schedule or delay and wait for a representative for Sutton.

The plaintiffs noted that Sutton’s father was petitioning the Superior Court of the Virgin Islands to be appointed representative of her estate. However, there was no evidence whether that petition was granted or was pending, and whether Sutton’s father was, in fact, a successor in interest of Sutton.  

Chief Judge Gomez couldn’t state based on the record, that there was any person who would be substituted for Sutton. Additionally, he reasoned that the introduction of a new party into the complicated and lengthy case would likely only serve to delay matters further, as Sutton’s successor would be free to choose new counsel and the reopening of discovery, which was closed for some time.

The juddge reasoned that Federal Rule of Civil Procedure 21 presented a potential solution. It provides:

“the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.”  

Judge Gomez found that severance was an appropriate remedy in this case due to Sutton’s death and the inability of either party to identify a successor.  Sutton’s claim was severed and the trial of that claim was scheduled separately for later in the year.

Parties may be substituted, but the replacement must be a specific entity or individual. Courts will not allow a party to add or drop a "player to be named later." In the United States Virgin Islands, the court severed the claim when the identity of the substituted party wasn’t known in time to continue with the trial schedule.

Richards v. Marshall, Slip Copy, 2013 WL 3992527 (D.Virgin Islands August 2, 2013).