Wisnesky v. Kijakazi

• Court: District Court, S.D. California
• Decided: February 6, 2025
• Docket: 3:23-cv-01107
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER W., Case No.: 23-cv-01107-JLB

12 Plaintiff, ORDER GRANTING AMENDED EX 13 v. PARTE MOTION TO SUBSTITUTE PARTIES DUE TO DEATH OF 14 MICHELLE KING, Acting Commissioner PLAINTIFF of Social Security,1 15 Defendants. [ECF No. 19, 28, 29] 16 17 18 19 Before the Court is an unopposed ex parte motion to substitute parties due to the 20 death of Plaintiff Christopher Wisnesky (“Plaintiff”). (ECF Nos. 19, 20, 21, 28, 29, 32.) 21 For the following reasons, the Court GRANTS the amended ex parte motion to substitute. 22 I. BACKGROUND 23 On June 13, 2023, Plaintiff filed a complaint pursuant to 42 U.S.C. § 405(g) seeking 24 judicial review of a decision by the Commissioner of Social Security, denying his 25 application for disability insurance benefits under Title II of the Social Security Act. (ECF 26 27 1 Michelle King is substituted as the defendant in this suit pursuant Federal Rule of 28 1 Nos. 1, 17.) The Commissioner filed the Administrative Record on August 11, 2023. (ECF 2 No. 9.) 3 On August 18, 2023, Plaintiff filed a merits brief seeking reversal of the 4 Commissioner’s decision and an award of benefits. (ECF No. 13.) The Commissioner 5 thereafter filed an opposition (ECF No. 15), and Plaintiff filed a reply (ECF No. 16). On 6 September 16, 2024, the undersigned judge granted Plaintiff’s merits brief and remanded 7 the matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 8 405(g). (ECF No. 17.) Judgment was entered in favor of Plaintiff and against Defendant 9 on September 17, 2024. (ECF No. 18.) 10 On November 25, 2024, Plaintiff filed an ex parte motion to substitute parties due 11 to the death of Plaintiff. (ECF No. 19.) Plaintiff’s mother, Georgia Wisnesky, as personal 12 representative of Plaintiff’s estate, moves to substitute herself for Plaintiff pursuant to 13 Federal Rule of Civil Procedure 25(a). (Id. at 1.) A “Notice Regarding Substitution of 14 Party Upon Death of Claimant” form filed with the Social Security Administration (“SSA”) 15 by Ms. Wisnesky was attached to the motion. (ECF No. 19-1; see also ECF Nos. 29 at 5; 16 32.) Before the SSA, Ms. Wisnesky requested to be substituted into Plaintiff’s 17 administrative case and appear at the hearing. (Id.) On November 26, 2024, Plaintiff’s 18 certificate of death was filed. (ECF No. 20.) The certificate indicates that Plaintiff died 19 on May 11, 2024. (Id.) 20 The Commissioner does not oppose the motion. (ECF Nos. 21, 32.) Initially, the 21 Commissioner responded as follows: 22 Defendant has given substantive consideration to the merits of Plaintiff’s 23 motion, including under the agency’s guidelines for handling claims 24 following a claimant’s death. See 20 C.F.R. § 404.503(b); HALLEX I-2-4- 35. Defendant has found no basis to object to Plaintiff’s motion. Therefore, 25 Defendant has no objection to this request and will defer to the Court’s 26 assessment of the matter. 27 (Id. at 1–2.) 28 /// 1 In a supplemental response, the Commissioner advised the Court that further 2 administrative proceedings on remand are underway and remain pending at the 3 administrative level. (ECF No. 32 at 2.) The Commissioner also advised the Court that 4 Ms. Wisnesky has provided sufficient information to establish herself as the proper party 5 to be substituted in order to prevent dismissal at the administrative level. (Id.) After further 6 evaluation, the Commissioner reiterated that she does not oppose Plaintiff’s motion. (Id.) 7 On December 2, 2024, the parties filed a joint motion requesting the Court award 8 Ms. Wisnesky (on behalf of Plaintiff) attorney’s fees pursuant to the Equal Access to 9 Justice Act (“EAJA”), 28 U.S.C. § 2412(d), in the amount of $9,500. (ECF No. 23.) 10 On December 16, 2024, the Court held a status conference to discuss the motion to 11 substitute. (ECF No. 26.) The Court inquired about its authority to grant the pending 12 motion to substitute, given that the case is closed. Both parties represented that Plaintiff’s 13 claim is not extinguished given the pending EAJA attorney’s fees motion. On 14 December 17, 2024, the Court ordered the parties to supplement their briefing. (ECF No. 15 27.) Plaintiff filed two additional, substantially similar, motions to substitute. (ECF Nos. 16 28, 29.) The Commissioner filed a supplemental response. (ECF No. 32.) 17 II. LEGAL STANDARD 18 Federal Rule of Civil Procedure 25(a)(1) governs the issue of substitution and 19 provides as follows: 20 If a party dies and the claim is not extinguished, the court may order 21 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 22 not made within 90 days after service of a statement noting the death, the 23 action by or against the decedent must be dismissed. 24 Fed. R. Civ. P. 25(a)(1). Therefore, in deciding a motion to substitute under Rule 25(a)(1), 25 a court must consider whether: (1) the motion is timely, (2) the claims pled are 26 extinguished, and (3) the person being substituted is a proper party. See id.; see also 27 Maseda v. Saul, No. 1:20-CV-01657 JLT, 2021 WL 2268871, at *1 (E.D. Cal. June 3, 28 2021). If the requirements of Rule 25(a)(1) are met, “[t]he substituted party steps into the 1 same position as [the] original party.” Hilao v. Est. of Marcos, 103 F.3d 762, 766 (9th Cir. 2 1996). “Rule 25(a) should be applied flexibly and liberally to permit substitution of the 3 party or parties who . . . would adequately represent [the decedent’s] interests.” In re 4 Baycol Prods. Litig., 616 F.3d 778, 789 (8th Cir. 2010). 5 III. DISCUSSION 6 A. Timeliness of Motion 7 Rule 25(a)(1) provides that the motion for substitution must be made “within 90 days 8 after service of a statement noting the death.” Fed. R. Civ. P. 25(a)(1). Courts have 9 construed a motion for substitution to be a notice of death when a party’s death is first 10 mentioned in the substitution motion. Worrell v. Colvin, No. 1:12-CV-3386 ENV, 2013 11 WL 3364373, at *1 (E.D.N.Y. July 3, 2013); see also Fed. R. Civ. P. 25 advisory 12 committee’s note (1963) (“A motion to substitute may be made by any party or by the 13 representative of the deceased party without awaiting the suggestion of death. Indeed, the 14 motion will usually be so made.”). Here, Ms. Wisnesky filed a motion for substitution 15 noting Plaintiff’s death one day before filing the death certificate. (See ECF Nos. 19, 20.) 16 Her amended motion is similarly within the 90-day time frame. (ECF No. 29.) 17 Accordingly, the Court finds the instant motion timely. 18 B. Survival of the Claim 19 A party can be substituted only when the plaintiff’s claim has not been extinguished. 20 See Fed. R. Civ. P. 25(a)(1). As this is a federal claim, the Court first determines whether 21 the statute contains a “specific directive” as to whether the claim survives Plaintiff’s death. 22 Perlow v. Comm’r of Soc. Sec., No. 10-CV-1661 SLT, 2010 WL 4699871, at *1 (E.D.N.Y. 23 Nov. 10, 2010) (citation omitted); see also Rocha v. Comm’r of Soc. Sec., No. 1:20-cv- 24 00613-CDB (SS), 2023 WL 2655805, at *1 (E.D. Cal. Mar. 27, 2023). The Social Security 25 Act expressly provides for Plaintiff’s disability insurance benefits to be paid to his 26 survivors, which may be a parent, in the event he dies before collecting his underpayments. 27 See 42 U.S.C. § 404(d)(3). Accordingly, Plaintiff’s claims were not necessarily 28 1 extinguished upon his death. See Rocha, 2023 WL 2655805, at *1; Aranda v. Comm’r of 2 Soc. Sec., No. 1:20-CV-00558-SAB, 2021 WL 4864609, at *2 (E.D. Cal. Oct. 19, 2021). 3 Here, the Commissioner has informed the Court that further administrative 4 proceedings, following remand, are underway and remain pending at the administrative 5 level. (ECF No. 32 at 2.) Moreover, the parties have filed a joint motion for attorney’s 6 fees pursuant to the EAJA payable to Ms. Wisnesky (on behalf of Plaintiff) in this case, 7 which remains pending. (ECF No. 23 at 2.) Therefore, a current dispute also remains in 8 the above-captioned case. Given the foregoing, the Court finds that Plaintiff’s claim has 9 not been extinguished. 10 C. Proper Party for Substitution 11 Rule 25(a)(1) requires evidence that Ms. Wisnesky is a successor in interest or legal 12 representative of Plaintiff. See Hilao, 103 F.3d at 766 (applying Rule 25(a)(1) to the legal 13 representatives of the deceased’s estate). As the Ninth Circuit has explained: “It is plain . 14 . . that Rule 25(a)(1) applies only to the substitution of legal representatives. That is not 15 only clear from its history; it is implicit in the wording of the provision and in the cases 16 construing it.” Mallonee v. Fahey, 200 F.2d 918, 919 (9th Cir. 1952) (footnote omitted); 17 see also Maseda, 2021 WL 1990179, at *2. 18 The Court finds that the person seeking substitution, Ms. Wisnesky, the mother of 19 Plaintiff, is the proper party. Plaintiff died unmarried and childless. (ECF No. 29 at 1.) 20 Ms. Wisnesky represents that she is the personal representative of Plaintiff’s estate and the 21 Commissioner, who is handling Plaintiff’s case on remand, does not dispute that 22 Ms. Wisnesky is entitled to Plaintiff’s benefits, if any are awarded on remand. (See ECF 23 Nos. 21, 32.) In her supplemental brief, the Commissioner states that the information 24 provided by Ms. Wisnesky “is sufficient to establish [herself] as a substitute party and will 25 prevent a dismissal of this case at an administrative level. Therefore, the Commissioner 26 does not oppose Plaintiff’s amended Motion to Substitute parties.” (ECF No. 32 at 2.) 27 Accordingly, the Court finds that Ms. Wisnesky is the proper party to be substituted in this 28 case. 1 |}IV. CONCLUSION 2 Based on the foregoing, Plaintiff’'s amended ex parte motion to substitute (ECF No. 3 ||29) is GRANTED and Georgia Wisnesky is substituted in place of Christopher Wisnesky 4 Plaintiff in this case. The Clerk of Court is DIRECTED to reflect that change on the 5 ||docket. The Court further DENIES AS MOOT Plaintiff's prior motions to substitute 6 ||(ECF Nos. 19, 28.) 7 IT IS SO ORDERED. 8 Dated: February 6, 2025 -

n. Jill L. Burkhardt 10 ited States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28