Nyandja v. Steptoe & Johnson PLLC

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] Capree se Nyandja, ) No. CV-21-00968-PHX-SPL ) [9] ) 10 Plaintiff, ) ORDER vs. ) ) [11] ) Steptoe & Johnson PLLC, et al., ) [12] ) 13 Defendants. ) ) 14 ) 15 Before the Court are Movant Synthia Byrd’s Motion for Extension (Doc. 34) and 16 Defendant Steptoe & Johnson LLP’s Motion to Dismiss for Lack of Substitution (Doc. 36). 17 The procedural history of this case is unusual. Plaintiff Capreese Nyandja filed this action 18 alleging various claims of employment discrimination on June 3, 2021. (Doc. 1). Defendant 19 Steptoe & Johnson LLP timely filed an Answer on August 5, 2021. (Doc. 11). The Court 20 issued a Scheduling Order that set a June 10, 2022 deadline for discovery and a July 10, 21 2022 deadline for dispositive motions. (Doc. 16). On April 12, 2022, the Court granted a 22 sixty-day extension, setting a discovery deadline of August 10, 2022, and a dispositive 23 motion deadline of September 9, 2022. 24 On April 15, 2022, Plaintiff’s then-counsel filed a Motion to Withdraw without 25 Plaintiff’s consent. (Doc. 23). The Court denied the Motion without prejudice because 26 counsel did not set forth justifiable cause for withdrawal. (Doc. 25). On April 22, 2022, 27 counsel filed a Renewed Motion to Withdraw, stating that “significant and irreconcilable 28 differences of opinion between counsel and client regarding the means by which this case 1 is conducted make further representation impractical.” (Doc. 26 at 1). The Court granted 2 the Motion and ordered counsel to serve a copy of the Order on Plaintiff. (Doc. 27). On 3 April 29, 2022, Plaintiff’s former counsel filed a Notice of Service of Order stating that he 4 served Plaintiff with the Order via mail and email. (Doc. 28 at 1). The Notice also stated 5 that counsel had subsequently learned from Defendant’s counsel that Plaintiff had died. 6 (Doc. 28 at 1). The Notice said that Plaintiff’s counsel had located and spoken to Plaintiff’s 7 next-of-kin and personal representative, Synthia Byrd, and emailed Ms. Byrd copies of 8 certain case documents. (Doc. 28 at 1–2). 9 After that, nothing was filed in this case until September 23, 2022, when, after 10 passage of the dispositive motion deadline, the Court set a Final Pretrial Conference for 11 December 1, 2022. (Doc. 29). On November 4, 2022, Defendant filed a Notice of 12 Settlement (Doc. 30), so the Court vacated the Final Pretrial Conference and set a dismissal 13 date of December 9, 2022. (Doc. 31). On November 21, 2022, Defendant filed a Motion to 14 Enforce Settlement, asserting that Defendant and “Synthia Anderson, personal 15 representative of the Estate of Capreese Nyandja,”1 had reached an agreement on 16 settlement terms but that Ms. Anderson was then refusing to sign off on the agreement. 17 (Doc. 32). On December 5, 2022, the Court denied the Motion to Enforce without prejudice 18 and extended the dismissal date to January 9, 2023. (Doc. 33). The Court noted that Ms. 19 Anderson is not a party to this case and that Defendant cited no authority to suggest that 20 the Court can enforce a settlement entered into by a non-party. (Doc. 33 at 1). 21 On January 3, 2023, Movant Synthia Byrd filed the pending Motion for Extension 22 of the dismissal date, asserting that she had “filed . . . in probate court to be legally 23 appointed so that [she] can represent [her] daughter” and needed additional time “to prepare 24 for this case.” (Doc. 34). On January 6, 2023, Defendant filed the pending Motion to 25 Dismiss, arguing that the case must be dismissed for failure to substitute pursuant to [26] 27 1 It appears that Synthia Byrd, as she was referred to by Plaintiff’s counsel, and Synthia Anderson, as she was referred to by Defendant’s counsel, refer to the same person, 28 though no explanation for the discrepancy is given. 1 Federal Rule of Civil Procedure (“Rule”) 25(a)(1). (Doc. 36). 2 Rule 25(a)(1) provides that “[a] motion for substitution may be made by any party 3 or by the decedent’s successor or representative,” but “[i]f the motion is not made within 4 90 days after service of a statement noting the death, the action by . . . the decedent must 5 be dismissed.” Still, “the 90 day period provided by Rule 25(a)(1) will not be triggered . . . 6 until the appropriate representative of the estate is served a suggestion of death in the 7 manner provided by Federal Rule of Civil Procedure 4.” Barlow v. Ground, 39 F.3d 231 , 8 233–34 (9th Cir. 1994); see Fed. R. Civ. P. 25(a)(3); see also In re MGM Sec. Litig., 282 9 F.R.D. 600, 602 (D. Nev. 2012). 10 Here, Plaintiff’s former counsel’s April 29, 2022 Notice did indicate Plaintiff’s 11 death on the record and noted that counsel spoke to Ms. Byrd, the personal representative 12 of Plaintiff’s estate, about the case. But there is no indication that Ms. Byrd was formally 13 served in accordance with Rule 4, and the Ninth Circuit’s interpretation of Rule 25 is clear 14 that the 90-day period for dismissal therefore has not begun to run. See Barlow, 39 F.3d at 15 233 (noting that one purpose of personal service of a notice of death is to “alert[ ] the 16 nonparty to the consequences of death to a pending suit, signaling the need for action to 17 preserve the claim if so desired” (internal quotation marks omitted)). Defendant’s Motion 18 to Dismiss will therefore be denied. 19 The remaining question, then, is how this case should proceed, as it is currently 20 languishing in anticipation of either a potential settlement or a Final Pretrial Conference.2 21 The Court will order Defendant to serve a statement noting Plaintiff’s death, along with a 22 copy of this Order, on the appropriate representative in accordance with Rule 4, which will 23 trigger Rule 25(a)(1)’s 90-day period for a motion for substitution to be filed; if a motion 24 to substitute is not filed within 90 days of service, this case will be dismissed pursuant to [25] 2 The Court does not make any suggestion that the parties should or should not settle; 26 the Court does not involve itself in settlement discussions between the parties. In addition, nothing in this Order should be read to preclude, discourage, or encourage Defendant in 27 renewing its Motion to Enforce Settlement at an appropriate time, per the Court’s December 5, 2022 Order (Doc. 33), nor should it be read to express any views on the merits 28 of any such Motion. Rule 25(a)(1). If a motion to substitute is granted, the Court intends to immediately reset a 2| Final Pretrial Conference because the time for discovery and dispositive motions has long passed. In the meantime, the Court will vacate the dismissal date for this action. 4) Accordingly, 5 IT IS ORDERED that Defendant’s Motion to Dismiss Case for Lack of Substitution (Doc. 36) is denied. 7 IT IS FURTHER ORDERED that no later than February 13, 2023, Defendant 8 | shall (1) serve a statement noting Plaintiff’s death, along with a copy of this Order, on the 9 | appropriate representative of Plaintiff's estate in the manner provided by Rule 4, and 10| (2) file the statement noting death and proof of service with this Court. 11 IT IS FURTHER ORDERED that if Plaintiff’s successor or representative fails to file a motion to substitute within ninety (90) days of being served with the statement noting 13 | Plaintiff's death, this case will be dismissed without further notice in accordance with Rule 14| 25. 15 IT IS FURTHER ORDERED that the January 9, 2023 dismissal deadline is vacated. 17 IT IS FURTHER ORDERED that Movant Synthia Byrd’s Motion for Extension 18 | (Doc. 34) is denied as moot. 19 Dated this 2nd day of February, 2023. [20] 7 United States District kudge