ABC v. DEF

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK wn eK JOHN DOE, et al., Plaintiffs, : : 14-cv-2953 (PAE) - against - : JOSEPH LIMA, et al., Defendants.

PLAINTIFFS’ MOTION FOR SUBSTITUTION OF PARTY Plaintiffs John Doe, Jane Doe, and MLS. (“Plaintiffs”) respectfully move, pursuant to Federal Rule of Civil Procedure 25(a) to substitute a party in interest in place of deceased Defendant Joseph Lima. In support of this motion, Plaintiffs state as follows: 1. On April 25, 2014, Plaintiffs brought claims under 42 U.S.C. § 1983 for violations of their constitutional rights by employees of the New York State Department of Corrections and Community Service (“DOCCS”), including Defendant Joseph Lima, a former Bureau Chief of the Manhattan VI Area Office. Defendant Lima was named as a defendant in both his personal and official capacities. First Amended Complaint at JJ 14, 21 (Dkt. No. 100). 2. On August 31, 2017, this Court granted Plaintiffs’ motion for summary judgment as to liability against all defendants, including Defendant Lima. (Dkt. No. 283). On February 21, 2019, the Second Circuit affirmed the Court’s decision. (Dkt. No. 320). A trial for damages has not yet been scheduled. 3. On February 4, 2020, counsel for Defendant Lima filed a statement with the Court noticing Defendant Lima’s death. (Dkt. No. 367).

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4. On May 5, 2020, the Court granted Plaintiffs’ request for a two-week extension of the 90- day period to file the instant motion, to allow Plaintiffs time to coordinate with counsel for Defendant Lima regarding service of the motion. 5. Pursuant to Federal Rule of Civil Procedure 25(a), “[i]f a party dies and the claim is not extinguished, the court may order substitution of the proper party.” Fed. R. Civ. P. 25(a). Under New York law, Section 1983 claims survive the death of a defendant. See Barrett v. United States, 651 F. Supp. 604, 606 (S.D.N.Y. 1986); Crichlow v. Fischer, 2015 WL 678725 at *4 (S.D.N.Y. Feb. 13, 2015); Graham v. Henderson, 224 F.R.D. 59, 63 (N.D.N-Y. 2004). 6. When a defendant who has been sued in an individual capacity in a Section 1983 action dies, “the proper party to substitute is the successor of the deceased or the representative of his estate.” Graham, 224 F.R.D. at 64; accord Young v. Patrice, 832 F. Supp. 721, 724 (S.D.N-Y. 1993). 7. On May 11, 2020, counsel for Defendant Lima identified Pamela Lima as Defendant Lima’s widow and represented to Plaintiffs that Ms. Lima authorized counsel to accept service on her behalf. 8. Upon information and belief, Pamela Lima is Defendant Lima’s successor and/or the representative of his estate. WHEREFORE, Plaintiffs respectfully request that the Court enter an order pursuant to Federal Rule of Civil Procedure 25(a) substituting Pamela Lima as a party defendant in place of Defendant Lima. Dated: New York, New York May 18, 2020 Respectfully submitted, FRIEDMAN KAPLAN SEILER & ADELMAN LLP 3518358.2

/s/ Blair R. Albom Blair R. Albom 7 Times Square New York, New York 10036 (212) 833-1100 balbom@@fklaw.com

DEBEVOISE & PLIMPTON LLP /s/ Nathan S. Richards Nathan S. Richards 919 Third Avenue New York, New York 10022 (212) 909-6000 nsrichards@debevoise.com OFFICE OF THE APPELLATE DEFENDER /s/ Karena Rahall Karena Rahall 11 Park Place, Suite 601 New York, New York 10007 (212) 402-4100 Attorneys for Plaintiffs 5/19/2020 Granted. The Court orders that Pamela Lima be substituted as a party defendant in place of defendant Joseph Lima. SO ORDERED.

PAUL A. ols United States District Judge 3518358.2