Summary
adopting Magistrate Judge Peebles's Report and Recommendation
Summary of this case from Kotler v. JubertOpinion
9:06-CV-1308 (NAM/DEP)
12-20-2013
KERRY KOTLER, Plaintiff, v. JOHN DONELLI, Superintendent, Bare Hill Correctional Facility, L. JUBERT, Deputy Superintendent of Security, W. DANN, Correction Sergeant, DARWIN DAILY and DAVID CHARLAND, Correction Officers, Defendants.
Kerry Kotler Plaintiff pro se Green & Seifter Attorneys PLLC James L. Sonneborn, Esq., of counsel Harrison V. Williams , Jr., Esq., of counsel Standby Trial Counsel for Plaintiff Office of the Attorney General, State of New York James B. McGowan, Esq., of counsel Roger W. Kinsey, Esq., of counsel State of New York Attorneys for Defendants
APPEARANCES: Kerry Kotler
Plaintiff pro se
Green & Seifter Attorneys PLLC
James L. Sonneborn, Esq., of counsel
Harrison V. Williams , Jr., Esq., of counsel
Standby Trial Counsel for Plaintiff
Office of the Attorney General, State of New York
James B. McGowan, Esq., of counsel
Roger W. Kinsey, Esq., of counsel
State of New York
Attorneys for Defendants
Hon. Norman A. Mordue, Seniro United States District Judge:
MEMORANDUM-DECISION AND ORDER
Defendants filed and served a written notice of the death of defendant John Donelli on August 21, 2013 (Dkt. No. 117). No party moved for substitution of the decedent's successor or representative, nor did any party move under Fed. R. Civ. P. 6(b) to enlarge the time in which to file a motion for substitution. See Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467, 470 (2d Cir. 1998). On November 22, 2013, more than 90 days after service of the notice, United States Magistrate Judge David E. Peebles issued a Report and Recommendation (Dkt. No. 118) recommending dismissal of all claims against Donelli pursuant to Fed. R. Civ. P. 25(a).
Plaintiff has filed a pro se objection to the Report and Recommendation. (Dkt. No. 121). Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo those parts of a report and recommendation to which a party specifically objects. Plaintiff asserts that the notice is "materially insufficient on its face" because it "contains neither the name of the executor or executrix to the Donelli estate, nor any contact information for him or her." Plaintiff asks the Court to direct counsel for the surviving defendants "to investigate the status of Donelli's estate, and provide a proper Suggestion of Death that identifies his representative, and that if that information can not be obtained, to submit a declaration describing the efforts made to do so."
It is well established that Rule 25 does not require that a statement of death "identify the successor or legal representative; it merely requires that the statement of death be served on the involved parties." Unicorn Tales, 138 F.3d at 470. Accordingly, upon de novo review, the Court accepts the Report and Recommendation and dismisses all claims against Donelli.
It is therefore
ORDERED that the Report and Recommendation (Dkt. No. 118) is accepted; and it is further
ORDERED that all claims against John Donelli are dismissed; and it is further
ORDERED that the Clerk of the Court is directed to serve copies of this Memorandum-Decision and Order in accordance with the Local Rules of the Northern District of New York, on both the pro se plaintiff and stand-by trial counsel, as well as defendants' counsel.
IT IS SO ORDERED.
__________________________
Norman A. Mordue
Senior U.S. District Judge