Opinion
7:20-cv-04257-TLW-JDA
09-21-2021
Clarence Silvester Gregory, Individual and Individually Named Under The Survivorship Right Statute as an Surviving Son heir, et., And a Real Party/Claimant of His Father Decedent, William Jessie Gregory, Jr.; Estate of William Jessie Gregory, Jr. Plaintiff, v. R.J. Reynolds Tobacco Company, Inc., also known as Reynolds American, Inc., also known as The American Tobacco Corporation, formerly known as Brown &Williamson USA, Inc.; Phillip Morris USA, Inc., formerly known as Altria Group, Inc., Defendants.[1]
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge
This matter is before the Court on Defendants' motion to dismiss, Plaintiff's motion to amend the Amended Complaint to cure defects, non-party Terrie Ann Covington's motion to amend and substitute parties, and Plaintiff's motion to object and to amend. [Docs. 30; 64; 73; 84.] Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases involving litigation by individuals proceeding pro se and to submit findings and recommendations to the District Court.
Plaintiff is an inmate in the custody of the South Carolina Department of Corrections and is currently incarcerated at the Broad River Correctional Institution. Plaintiff filed this action on November 24, 2020, and subsequently filed an Amended Complaint. [Docs. 1; 14.] On May 18, 2021, Defendants filed a motion to dismiss the Amended Complaint. [Doc. 64.] The same day, the Court issued an Order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff, who is proceeding pro se, of the summary judgment/dismissal procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 66.] In response, Plaintiff filed a motion to object to the motion to dismiss and to amend [Doc. 84], which the Court construes as Plaintiff's response in opposition to the motion to dismiss as well as his motion to amend. These motions are now ripe for review.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, construing the filing date in the light most favorable to Plaintiff, the Court deems this action to have been filed on November 24, 2020. [Doc. 1-18 at 3 (Plaintiff's affidavit of service signed on November 24, 2020).]
Two other motions are currently before the Court. On April 19, 2021, the Clerk filed a motion from Plaintiff to amend his Amended Complaint, and on May 24, 2021, the Clerk filed a motion from Covington, seeking to be substituted as the party representing the estate of Plaintiff's father, William James Gregory, Jr. (“Decedent”); to have the Court hold in abeyance the Decedent's wrongful death and survival claims; and to amend the Amended Complaint. [Docs. 30; 73.] On June 7, 2021, Defendants filed a response opposing Covington's motion. [R. 77.] These motions are also ripe for review.
BACKGROUND
Plaintiff commenced this action by filing a voluminous Complaint that consisted of 2, 053 typed pages. [Doc. 1.] Upon review, the Court concluded that the Complaint did not comply with Rule 8 of the Federal Rules of Civil Procedure. [Doc. 11.] Consequently, the Court notified Plaintiff that his Complaint would be subject to summary dismissal pursuant to 28 U.S.C. § 1915 unless Plaintiff cured the deficiencies of his Complaint by filing an amended complaint that complied with Rule 8. [Doc. 11.]
On January 11, 2021, Plaintiff filed a pleading on the standard court form [Doc. 14], a separate typed 37-page pleading against Defendant Phillip Morris USA, Inc. [Doc. 14-1], and a separate typed 30-page pleading against Defendant RJ Reynolds Tobacco Company, Inc. [Doc. 14-2]. The Court construes these three documents together as the Amended Complaint. [Doc. 19 at 2.]
This action arises from Plaintiff's claim that Defendants, who are corporations in the tobacco industry, committed intentional fraud and sold products resulting in his father's smoking and in Plaintiff's inhalation of second-hand smoke. [Docs. 14; 14-1; 14-2.] Specifically, Plaintiff alleges that Defendants' fraudulent representations that their products were safe caused the death of his father, who died of brochogenic lung cancer, COPD, and squamous cell carcinoma cancer. [Doc. 14 at 10.] As a result of his father's death, Plaintiff has suffered the loss of parental guidance; parental association; and parental, child, and family relationship. [Id.]
Plaintiff also alleges that, as a result of his inhalation of second-hand smoke, Plaintiff now suffers from chronic sinusitis, chronic coughing, infection of his esophagus, infection of his larynx voice box, shortness of breath, wheezing and gasping, increased phlegm, worsened cold symptoms, scratchy throat, throat irritation, nightmares, and lack of rest and sleep. [Id.] He further alleges he suffers nightmares from witnessing his father's deteriorating physical condition and hearing his father moaning and groaning in agony, as a result of his cancer. [Id.]
Plaintiff appears to bring four claims in this action. He first asserts a claim for Decedent's wrongful death. [Docs. 14-1 ¶¶ 92-107; 14-2 ¶¶ 59-70.] Second, Plaintiff asserts a fraud claim on behalf of Decedent, which appears to be brought under the South Carolina Survival Statute. [Docs. 14-1 ¶¶ 92-107; 14-2 ¶¶ 59-70.] Third, Plaintiff asserts an Eighth Amendment claim for deliberate indifference against Defendant RJ Reynolds on his own behalf. [Doc. 14-2 ¶¶ 71-79.] Fourth, Plaintiff asserts a fraud claim on his own behalf (“the individual fraud claim”). [Docs. 14-1 ¶¶ 92-107; 14-2 ¶¶ 59-70.]
For his relief, Plaintiff seeks a declaratory judgment, an award of money damages in the amount of $100,000,000 under the South Carolina Wrongful Death Statute, $100,000,000 under the South Carolina Survival Statute, $100,000,000 for his own injuries arising from second-hand smoke, and punitive damages. [Docs. 14 at 11-12; 14-1 ¶¶ 109-16; 14-2 ¶¶ 81-96.]
On March 26, 2021, the undersigned issued a Report and Recommendation recommending summary dismissal without service of process of all but the individual fraud claim. [Doc. 19.] That Report and Recommendation remains pending.
APPLICABLE LAW
Liberal Construction of Pro Se Pleadings
Plaintiff is proceeding pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the party proceeding pro se could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the pro se party's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Motion to Dismiss Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.”).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.. The plausibility standard reflects the threshold requirement of Rule 8(a)(2)-the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557; see also Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
DISCUSSION
Defendants' Motion to Dismiss
The undersigned previously recommended that the Court dismiss Plaintiff's wrongful death, survival, and deliberate indifference claims. [Doc. 19.] Accordingly, this Report and Recommendation addresses the only other claim brought by Plaintiff-the individual fraud claim. Defendants argue, for two reasons, that this claim should be dismissed for failure to state a claim. [Doc. 64-1 at 5-7.] They maintain that Plaintiff's claim is time barred [Doc. 64-1 at 5-6] and that Plaintiff has not plausibly alleged that he relied on any representation by Defendants that led to his alleged injuries [id. at 6-7]. The Court will address these two arguments seriatim.
Plaintiff asserts that Defendants' motion to dismiss should be procedurally denied and that the Court should invoke sanctions because Defendants' counsel filed separate notices of appearance and separate answers to Local Rule 26.01 interrogatories but subsequently filed a joint motion to dismiss. [Docs. 85; 88.] However, the Court is aware of no rule prohibiting parties with separate counsel from filing a joint motion signed by all counsel. To the extent Plaintiff believes either party is now represented by different counsel, he is incorrect.
Statute of Limitations
As the Fourth Circuit has explained:
Ordinarily, a defense based on the statute of limitations must be raised by the defendant through an affirmative defense, see Fed. R. Civ. P. 8(c), and the burden of establishing the affirmative defense rests on the defendant. It follows, therefore, that a motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6), which tests the sufficiency of the complaint, generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiff's claim is time-barred. But in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6). This principle only applies, however, if all facts necessary to the affirmative defense “clearly appear[] on the face of the complaint.”Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc) (alteration in original, citations omitted).
A three-year statute of limitations applies to Plaintiff's individual fraud claim. S.C. Code Ann. § 15-3-530(7). “According to the discovery rule, the statute of limitations begins to run when a cause of action reasonably ought to have been discovered.” Earthworks Grp., Inc. v. A&K Props. of S.C., Inc., No. 4:17-cv-01486-SAL, 2020 WL 1703897, at *8 (D.S.C. Apr. 8, 2020). “Under this rule, a cause of action accrues for purposes of the statute of limitations when a plaintiff has notice that he might have a remedy for a harm.” Id. “The statute runs from the date the injured party either knows or should have known by the exercise of reasonable diligence that a cause of action arises from the wrongful conduct.” Id.
The Supreme Court of South Carolina has “interpreted the ‘exercise of reasonable diligence' to mean that the injured party must act with some promptness where the facts and circumstances of an injury place a reasonable person of common knowledge and experience on notice that a claim against another party might exist.” Dean v. Ruscon Corp., 468 S.E.2d 645, 647 (S.C. 1996).
In this case, many years have passed since Defendants allegedly made the complained-of fraudulent misrepresentations. However, the only allegations in Plaintiff's Amended Complaint that address when Plaintiff should have discovered the fraud concern Defendants' own disclosures. Plaintiff specifically alleges that he watched a television news story “on/or about, November 28, thru December 28, 2017” reporting that the tobacco industry had admitted that smoking cigarettes causes lung cancer. [Doc. 14-1 ¶ 88; see also Doc. 14-2 ¶¶ 32, 34, 38 (similar).] Defendants argue that, assuming that Plaintiff's claim accrued on November 28, 2017, the three-year limitations period expired before he filed this action, which Defendants claim Plaintiff filed on December 7, 2020. [Doc. 64-1 at 6.] As the Court has already explained, however, infra note 2, because Plaintiff submitted his Complaint from prison, construing the filing date in the light most favorable to him, the Court deems this action to have been filed on November 24, 2020, which is the date he signed his affidavit of service. See Lack, 487 U.S. at 270. Because this was within the applicable three-year period, even accepting Defendants' accrual date of November 28, 2017, the Court concludes that Defendants are not entitled to dismissal of the fraud claim on statute-of-limitation grounds.
Moreover, the Amended Complaint, viewed in the light most favorable to Plaintiff, does not allege that Plaintiff saw the news report on November 28, 2017. Rather, it alleges that he saw the report some time between November 28, 2017, and December 28, 2017. [See Docs. 14-1 ¶ 88; 14-2 ¶¶ 32, 34, 38.] Given the Court's conclusion that the pleadings do not establish that Plaintiff filed his action outside of the limitations period, the Court does not address the parties' arguments regarding equitable tolling.
Fraud Elements
Defendants next contend that Plaintiff fails to plausibly allege the elements of a fraud claim. [Doc. 64-1 at 6-7.] To state a claim for fraud, a plaintiff must allege (1) a representation; (2) its falsity; (3) its materiality; (4) knowledge of its falsity or a reckless disregard of its truth or falsity; (5) intent that the plaintiff act upon the representation; (6) the hearer's ignorance of the falsity; (7) the hearer's reliance on the truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury. M.B. Kahn Constr. Co. v. S.C. Nat'l Bank of Charleston, 271 S.E.2d 414, 415 (S.C. 1980). Defendants maintain that Plaintiff has failed to allege that he relied on the truth of Defendants' representations or that such reliance caused Plaintiff harm. [Doc. 64-1 at 6-7.] The Court disagrees.
Plaintiff plainly alleges that, in reliance on Defendants' misrepresentations regarding the safety of tobacco products, he “continued to sit around, work, play in and around cigarette smokers, including” his father. [Doc. 14-1 ¶ 20; see Doc. 14-2 ¶ 65 (alleging that Plaintiff, as a hearer of the alleged misrepresentations, justifiably relied on the truth of those representations by exposing himself to second-hand smoke).] Plaintiff also alleges that his exposure to second-hand smoke caused him to suffer “lung infection, ” as well as “Chronic Sinusitis, Chronic coughing and progressive worsened, Shortness of Breath, Wheezing or gasping, headaches, Increase phlegm, Respiratory infection, worse cold symptoms allergy, Throat irritation, Throat scratching, Burning sensation of watery eyes, [and] Burning throat sensations.” [Doc. 14-1 ¶¶ 56, 104-05; see Doc. 14-2 ¶ 69.] Defendants fail even to acknowledge Plaintiff's allegations regarding his reliance on Defendants' purported misrepresentations, let alone articulate any reason why they are insufficient. Accordingly, the Court concludes that Defendants are not entitled to dismissal of the fraud claim on this basis either.
Because the Court concludes that neither of Defendants' arguments for dismissing the fraud claim is meritorious, the Court recommends that Defendants' motion to dismiss be denied as to that claim.
Defendants also argue that Plaintiff has not stated a cognizable claim for punitive damages for his own alleged injuries because Plaintiff's fraud claim is time barred and Plaintiff has failed to adequately allege reliance or injury. [Doc. 64-1 at 7-8.] For the reasons already explained, the Court disagrees with the premise of Defendants' argument and recommends that Defendants' motion to dismiss Plaintiff's request for punitive damages be denied as well.
Plaintiff's and Covington's Motions
As stated, Plaintiff has filed two motions seeking to amend his Amended Complaint [Docs. 30; 84] and Covington filed a motion for substitution of parties and to amend [Doc. 73]. With his first motion to amend, Plaintiff submitted a proposed amendment. [Doc. 301.] In his proposed amendment, Plaintiff appears to delete his Eighth Amendment claim that the undersigned previously recommended be summarily dismissed, to include his wrongful death and survival claims that the undersigned previously recommended be summarily dismissed, and to add a claim for fraudulent concealment. [Docs. 30 at 2; 30-1 at 8, 43, 57, 58, 60.] Plaintiff also asks the Court to appoint legal counsel to represent Decedent's claims or to hold Decedent's claims in abeyance until the proper party can be substituted. [Doc. 30-1 at 56.]
Plaintiff also argues that amending his Amended Complaint would allow him to properly assert that he was ignorant of the falsity of the fraudulent misrepresentations that are the basis of his claims. [Doc. 30 at 1.] However, the Court concludes that Plaintiff already satisfactorily alleged his ignorance regarding the falsity of those statements. [See, e.g., Doc. 14-1 ¶¶ 48 (alleging that Plaintiff and his father “were ‘unaware and unknowledgable' of the means of the knowledge of the truth, concerning the facts that [Phillip Morris] falsely represented, concealed the knowledge of the whole truth concerning the sign[i]ficant and harmful addictive nature of smoking cigarettes and the clinical evidence of materials that smoking cigarettes causes lung cancer and exposure to second hand smoke or environmental tobacco smoke . . ., by inhaling and breathing it, as [a] nonsmoker, poses serious risks of dangers to non-smokers' health and safety and causes lung cancer and premature death”), 54 (similar); 97 (incorporating paragraph 48 into the ignorance element of a fraud claim); Doc. 14-2 ¶¶ 43 (alleging that Plaintiff and his father “lacked knowledge . . . of the facts and truth in question concerning Defendant's affirmative published radio, televised advertising commercials”), 45 (alleging that Plaintiff and his father “acted in good-faith, and acted reasonabl[y] in reliance upon the Defendant's affirmative acts, what it represented”).] Accordingly, to the extent Plaintiff seeks leave to amend to assert ignorance, his motion should be denied on the basis of futility. See King v. Jefferies, 402 F.Supp.2d 624, 637 (M.D. N.C. 2005) (“Because Plaintiff's amendment has no effect on the proceedings, the court considers it futile and therefore will deny Plaintiff's request.”). Leave to amend to allege fraudulent concealment should be denied for similar reasons as the allegations regarding fraudulent concealment and equitable estoppel in his Amended Complaint already satisfactorily allege the necessary elements. [Docs. 14-1 ¶¶ 35-47; 14-2 ¶¶ 30-46.]
In her motion, Covington asks to be substituted as the party representing Decedent's Estate, to have the Court hold in abeyance Decedent's wrongful death and survival claims for 90 days until Covington has obtained counsel or this Court has appointed counsel, and to amend the Amended Complaint. [Doc. 73.] Covington represents that she is Decedent's daughter, and she acknowledges that she has six living siblings. [Doc. 73-1 at 2.] She further represents that she “is in Legal Process of Representative of [Decedent's] Estate” [Doc. 73 at 1], which the Court understands to mean that she is attempting to become the personal representative [see also Doc. 84 at 2 (Plaintiff's representation that Covington “is in legal process in the Probate Court to be appointed as the legal representative . . . to represent Decendent['s ] Estate”)].
The Court notes that more than 90 days have already passed since Covington requested that the case be held in abeyance for that period. However, no evidence has been submitted to demonstrate that Covington has been appointed personal representative or obtained counsel.
The undersigned recommends that these motions be denied as futile because the proposed amendment and substitution of parties would not cure the defects previously identified with respect to the wrongful death and survival claims. As noted in the pending Report and Recommendation, a wrongful death “action inheres only in the [personal representative], and the statutory beneficiaries cannot proceed in their individual capacity.” [Doc. 19 at 8 (internal quotation marks omitted).] Moreover, “even if Plaintiff were the personal representative of [the Decedent's Estate], he [would not be] permitted to bring [the wrongful death claim] in a pro se capacity.” [Id.] Additionally, a fraud claim asserted on Decedent's behalf cannot be asserted under the survival statute, and even if it could be, it could not be asserted by someone who is not the personal representative of Decedent's Estate. [Id. at 9-10.] Here, Covington seeks to be substituted as a party in this action to prosecute claims that only the personal representative of Decedent's Estate can prosecute and only when represented by counsel. However, neither Plaintiff nor Covington has alleged that Covington has actually become the personal representative of Decedent's Estate. Moreover, even if Covington has become the personal representative, no attorney has filed a notice of appearance on behalf of Decedent's Estate. Accordingly, the undersigned recommends that Plaintiff's and Covington's motions be denied without prejudice to anyone's right to subsequently file a motion, through counsel, to intervene pursuant to Rule 24 of the Federal Rules of Civil Procedure if such party becomes the personal representative of Decedent's Estate.
The undersigned previously took under advisement Plaintiff's first motion to amend and Covington's motion to amend and substitute because Plaintiff raised similar requests regarding substituting the personal representative of Decedent's Estate in his objections to the pending Report and Recommendation. [Docs. 43; 94.] However, now that Defendants have filed a motion to dismiss that is ripe for a recommendation, the undersigned will make recommendations regarding the other pending motions in this case.
Although Plaintiff asks the Court “to appoint legal counsel to represent Decedent['s ]claims” [Doc. 30-1 at 56] and Covington references “this Court . . .appoint[ing] legal counsel/guardian ad litem to properly represent this action” [Doc. 73 at 2], there is no constitutional right to appointed counsel in a civil case, Whisenant v. Yaum, 739 F.2d 160, 163 (4th Cir. 1984) (holding that 28 U.S.C. § 1915 does not authorize compulsory appointment of counsel), abrogated on other grounds by Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989). This Court may exercise its discretion to appoint counsel for an indigent in a civil action. 28 U.S.C. § 1915(d); see Smith v. Blackledge, 451 F.2d 1201, 1203 (4th Cir. 1971). However, the Fourth Circuit has stated that counsel should be appointed only in exceptional circumstances, which “will turn on the quality of two basic factors-the type and complexity of the case, and the abilities of the individuals bringing it.” Brock v. City of Richmond, 983 F.2d 1055 (4th Cir. 1993) (internal quotation marks omitted). The pleadings and documents filed in this case fail to demonstrate exceptional circumstances exist warranting the appointment of counsel at this stage in the proceedings.
Although Covington asserts that she should be substituted as a party under Rules 17, 19, and 25 [Doc. 73 at 1], the Court notes that the proper motion would have been brought under Rule 24. “Rule 17 is not a mechanism for a nonparty to assert that it is the real party in interest and thereby join the suit. Rather, a nonparty who is not invited into the suit but wishes to participate as the real party in interest should seek to intervene under Rule 24.” Fed.R.Civ.P. commentary; see Intown Props. Mgmt., Inc. v. Wheaton Van Lines, Inc., 271 F.3d 164, 168-71 (4th Cir. 2001). Similarly, a nonparty cannot file a Rule 19 motion for joinder. Arrow v. Gambler's Supply, Inc., 55 F.3d 407, 409 (8th Cir. 1995); Thompson v. Boggs, 33 F.3d 847, 858 n.10 (7th Cir. 1994); see also Callender v. Callender, No. TDC-15-4015, 2016 WL 3647613, at *7 (D. Md. June 30, 2016) (“Since a nonparty cannot file a motion for joinder under Rule 19 or Rule 20, the Court construes the Motion as one for intervention under Rule 24.”). Finally, “Rule 25(a) authorizes the substitution of proper parties when an existing party dies after the suit is commenced. It does not apply if the death occurred before the suit was filed.” Goss v. Larry, No. 2:20-cv-02978-JFA-MGB, 2021 WL 2562407, at *2 (D.S.C. June 22, 2021) (“[B]ecause Defendant Larry died before Plaintiff filed this lawsuit . . ., substitution under Rule 25 is not allowed.”). Here, because Plaintiff's father died years before this suit was filed and he was never a party to it, Rule 25(a) does not apply.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that Plaintiff's motion to amend the Amended Complaint to cure defects [Doc. 30] be DENIED; that Defendants' motion to dismiss [Doc. 64] be DENIED; that Covington's motion to amend and substitute parties [Doc. 73] be DENIED; and that Plaintiff's motion to object and to amend [Doc. 84] be DENIED.
IT IS SO RECOMMENDED.