Fields v. Kijakazi

[3] FILED IN THE 4 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON Oct 19, 2020 5 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK 6 EASTERN DISTRICT OF WASHINGTON 7 TIMOTHY F.,1 No. 1:20-cv-03019-MKD 8 Plaintiff, ORDER DENYING “SECOND 9 vs. MOTION TO SUBSTITUTE PARTY” 10 ANDREW M. SAUL, COMMISSIONER OF SOCIAL ECF NO. 24 11 SECURITY, Defendant. [12] BEFORE THE COURT is the filing dated October 12, 2020 captioned on [13] the docket as Plaintiff’s “Second Motion to Substitute Party.” ECF No. 24. [14] Attorney James Tree represents Plaintiff; Special United States Assistant Attorney [15] Joseph Langkamer represents Defendant. The parties have consented to proceed [16] before a magistrate judge. ECF No. 6. The Court expedites consideration of this [17] matter without awaiting a reply from Plaintiff due to the inadequacy of the motion [19] 1 To protect the privacy of plaintiffs in social security cases, the undersigned [20] identifies them by only their first names and the initial of their last names. 1 under Fed. R. Civ. P. 25 and LCivR 7. For the reasons discussed below, the 2 motion is denied. 3 BACKGROUND 4 On February 12, 2020, Plaintiff filed an appeal of an administrative law 5 judge’s denial of his application for disability insurance benefits under Title II and 6 supplemental security income benefits under Title XVI of the Social Security Act. 7 ECF No. 1. On August 20, 2020, the Court granted Plaintiff’s Motion for 8 Summary Judgment and remanded the matter pursuant to sentence four of 42 9 U.S.C. § 405 (g). ECF No. 18. 10 On September 9, 2020, Plaintiff’s counsel filed a motion for substitution of 11 Megan Derosier as Plaintiff, advising that Plaintiff had died on May 27, 2020 and 12 Ms. Derosier was Plaintiff’s daughter. ECF No. 20. On September 24, 2020, the 13 Court denied Ms. Derosier’s motion with leave to renew. ECF No. 23. The Court 14 found it lacked evidence to find the requirements of Federal Rule of Civil 15 Procedure 25 were met. ECF No. 23 at 3. 16 On October 12, 2020, Plaintiff’s counsel filed documents docketed as 17 Plaintiff’s “Second Motion to Substitute Party.” ECF No. 24. The filing consists 18 of (1) two Social Security Administration form notices (Form HA-5392) [19] 2 Form HA-539 is used at the administrative hearing level. See [20] https://www.ssa.gov/forms/ha-539.html. 1 signed by Amber Martinez, one dated September 30, 2020; (2) the Declaration of 2 Amber Martinez requesting her substitution as plaintiff as the guardian of the 3 decedent’s minor child; and (3) Plaintiff’s death certificate. ECF No. 24. Though 4 docketed as a motion, no motion was filed. On October 14, 2020, Defendant filed 5 a response. ECF No. 25. Defendant has no objection to Ms. Martinez’s 6 substitution for purposes of Plaintiff’s Title II claim, however, notes that her 7 substitution “may not be appropriate for purposes of Plaintiff’s Title XVI claim.” 8 ECF No. 25 at 2 (citing 42 U.S.C. § 416.542 (b)(1) regarding payment to the 9 deceased recipient’s surviving eligible spouse). 10 LEGAL STANDARD 11 Federal Rule of Civil Procedure 25 outlines the procedure required for 12 substitution of a party upon a party’s death where the claim is not extinguished: 13 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 14 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 15 action by or against the decedent must be dismissed. 16 Fed. R. Civ. P. 25(a)(1). In addition to these substantive requirements, the “motion 17 to substitute, together with a notice of hearing, must be served on the parties as 18 provided in Rule 5 and on nonparties as provided in Rule 4.” Fed. R. Civ. P. 19 25(a)(3). [20] 1 DISCUSSION 2 The filing which was docketed as Second Motion to Substitute Party does 3 not comply with Local Civil Rule 7(b) which provides “[t]he moving party shall 4 file and serve a motion and any supporting materials. The motion serves as the 5 memorandum and shall set forth supporting factual assertions and legal authority.” 6 See LCivR 7(b). The Second Motion to Substitute does not include an 7 accompanying motion and memorandum, and therefore does not address the 8 substantive and procedural requirements of Federal Rule of Civil Procedure 25(a). 9 The documents filed are supporting materials which lack necessary explanation. 10 For example, the Court must determine whether Ms. Martinez is “the 11 property party.” If a claimant dies before he receives a Title II underpayment3, § 12 204(d) of the Social Security Act governs the disbursement of any disability 13 benefit payments due at the time of the claimant's death. This provision describes 14 the descending level of priority of seven classes of persons who may receive any 15 outstanding benefits. See 20 C.F.R. § 404.503 (b)(1)–(7). Surviving children are [17] 3 The term “underpayment” includes “nonpayment where some amount of such [18] benefits was payable. An underpayment may be in the form of an accrued unpaid [19] benefit amount for which no check has been drawn or in the form of an [20] unnegotiated check payable to a deceased individual.” 20 C.F.R. § 404.501 (a). 1 second and fifth in order of priority after an eligible surviving spouse.4 See 20 2 C.F.R. § 404.503 (b)(1), (2), (5). “A member of any of the enumerated classes has 3 standing to pursue the deceased beneficiary's benefits.” See Youghiogheny & Ohio 4 Coal Co. v. Webb, 49 F.3d 244, 247 (6th Cir. 1995). On the other hand, only 5 spouses and parents are eligible to receive underpayments for SSI. 20 C.F.R. § 6 416.542(b)(4) (“No benefits may be paid to the estate of any underpaid recipient, 7 the estate of the surviving spouse, the estate of a parent, or to any survivor other 8 than” a surviving eligible spouse or surviving parents). Therefore, it appears Ms. 9 Martinez may be a proper party in this matter regarding the DIB claim, but not the 10 SSI claim. As there is no accompanying memorandum, the “Second Motion to 11 Substitute” does not address this issue. 12 Furthermore, without more information, the Court is unable to confirm 13 whether the Second Motion to Substitute meets the procedural requirements of 14 Rule 25 requiring “[a] motion to substitute, together with a notice of hearing, must 15 be served . . . on nonparties as provided in Rule 4. A statement noting death must 16 be served in the same manner.” Fed. R. Civ. P. 25(a)(3). Although the rule 17 governing substitution does not say which nonparties must be served, case law [18] 4 The declaration of Ms. Martinez indicates Plaintiff “did not have a spouse at the [19] time of his death,” however, the death certificate names a surviving spouse and [20] lists marital status as “separated.” ECF Nos. 24-2, 24-3. 1 suggests those with a potential financial interest, namely the decedent’s successors 2 or personal representatives should be served. See, e.g., Barlow v. Ground, 39 F.3d 3 231, 233 (9th Cir. 1994) (“non-party successors or representatives of the deceased 4 party must be served the suggestion of death in the manner provided by Rule 4 for 5 the service of a summons.”); Atkins v. City of Chicago, 547 F.3d 869, 874 (7th Cir. 6 2008) (holding that motion to substitute filed without serving the personal 7 representative of the deceased’s estate was “a nullity”). 8 The record suggests Plaintiff has multiple successors, including a spouse, 9 four children, and parents, and it is unknown whether these nonparties also may 10 have an interest in this case and therefore should be served in accordance with 11 Rule 25. Any future motion to substitute must address the service requirement. 12 ACCORDINGLY, IT IS HEREBY ORDERED: 13 The Second Motion to Substitute Party, ECF No. 24, is DENIED. Any 14 future motion to substitute shall include a motion and memorandum 15 addressing the requirements of Federal Rule of Civil Procedure 25. 16 The District Court Executive is directed to file this Order and furnish copies 17 to counsel. 18 DATED this October 19, 2020. 19 s/Mary K. Dimke MARY K. DIMKE 20 UNITED STATES MAGISTRATE JUDGE