Paul Lavina et al.
Adam R. Satin, Esq. et al No. 131539
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF CHERYL LAVINA'S MOTION FOR SUBSTITUTION
Robert B. Gordon, Justice
On March 19, 2013, plaintiffs Paul Lavina (" Paul") and Cheryl Lavina (" Cheryl") filed a legal malpractice action against defendants Adam R. Satin and Lubin & Meyer, P.C. (together, " Lubin & Meyer"). In their Complaint, the plaintiffs allege that Lubin & Meyer was negligent in the handling of their medical malpractice suit,  which suit had been dismissed through the entry of summary judgment on statute of limitations grounds. Paul died on May 16, 2013, and a suggestion of death was filed on June 4, 2013. On July 26, 2013, the Probate Court appointed Cheryl as the personal representative of Paul's estate and approved her bond.
On June 8, 2015, following a period of active discovery, Lubin & Meyer filed a Motion for Summary Judgment. That motion argued, among other things, that the case must be dismissed on account of Cheryl's failure to make a timely motion under Mass.R.Civ.P. 25(a)(1) to substitute Paul's estate for Paul as the party-plaintiff. In response, Cheryl filed the present Motion for Substitution. For the reasons which follow, Cheryl's Motion for Substitution shall be DENIED, and Paul's claims in this action shall be DISMISSED in the manner hereinafter provided.
Rule 25(a)(1) of the Massachusetts Rules of Civil Procedure provides in pertinent part as follows:
If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the representative of the deceased party . . . Unless the motion for substitution is made within one year after the date of approval of the bond of the representative of the deceased party, the action shall, upon motion and hearing, be dismissed unless the failure of the surviving party to move for substitution was the result of excusable neglect.
Mass. R. Civ. 25(a)(1).
The Appeals Court has addressed the survivability of a civil action on analogous facts in just two prior cases, and in both instances affirmed the dismissal of the complaint as procedurally time-barred per Rule 25(a)(1). In Motta v. Schmidt Manufacturing Corp., 41 Mass.App.Ct. 785, 673 N.E.2d 874 (1996), the plaintiff brought claims against the defendant corporation and its majority shareholder, but died in September 1991 during the case's pretrial discovery phase. Shortly thereafter, the Probate Court approved the appointment of plaintiff's widow as administratrix of his estate. The case was subsequently placed on the court's trial list several times, and the parties participated in at least one pretrial conference. In October 1994, nearly three years after the Probate Court's approval of her appointment, the administratrix filed a motion to substitute herself as party-plaintiff in the matter. The defendants responded by moving to dismiss the action, asserting that the administratrix had not filed her motion for substitution within the one-year period following approval of her bond prescribed by Rule 25(a)(1). Motta, 41 Mass.App.Ct. at 786.
The Superior Court initially denied the defendants' motion to dismiss, and permitted the administratrix to substitute herself as party-plaintiff in the case in accordance with Rule 25. The defendants sought interlocutory relief from a Single Justice of the Appeals Court pursuant to G.L.c. 231, § 118. The Single Justice denied the requested relief without prejudice to either party re-addressing the issue on appeal following a final judgment, but remanded the matter to the Superior Court with instructions to make findings regarding the possible existence of " excusable neglect" on the part of the administratrix in connection with her late-filed motion for substitution. Motta, 41 Mass.App.Ct. at 786-87.
On remand, the Superior Court reversed its prior order (finding no excusable neglect) and allowed the defendants' motion to dismiss. The Appeals Court affirmed, holding that, while Mass.R.Civ.P. 25 made no provision for excusing an untimely motion for substitution by the representative of a deceased party, Mass.R.Civ.P. 6(b) did. The Court thus declared that " in exceptional and unusual circumstances . .., extensions of time for the filing of a motion for substitution by the representative of a deceased party may be granted where, acting within sound discretion, and for 'cause shown, ' the judge finds excusable neglect on the representative's part." Motta, 41 Mass.App.Ct. at 790. At the same time, however, and noting the textual differences between Mass.R.Civ.P. 25 and its federal counterpart, the Appeals Court cautioned that the Rule 6(b) excusable neglect exception should be applied " more sparingly" to late-filed substitution under the state rule.
More recently, the Appeals Court affirmed the dismissal of a securities action for failure to file a timely motion for substitution. In Cohen v. State Street Bank & Trust Co. the plaintiff passed away after the filing of his complaint, and his representative neglected to move for substitution of the decedent's estate within the one-year period required by Rule 25. The Superior Court (Gants, J.) granted the defendant's motion to dismiss, finding that " the circumstances were not [so] extraordinary to warrant excusable neglect." Id. at *3. The Appeals Court agreed, holding that " Rule 25, read in conjunction with Rule 6, requires dismissal absent excusable neglect." Id. at *4.
In the case at bar, it is undisputed that Cheryl waited some 22 months following her approval by the Probate Court to serve as bonded administratrix of Paul's estate before moving to substitute the estate as plaintiff in place of the decedent. It is likewise undisputed that Cheryl has put forward no grounds--and certainly none that qualify as " exceptional and unusual circumstances" for excusable neglect purposes--which would explain her failure to make a timely substitution motion under Rule 25. To his credit, counsel for the Lavinas has forthrightly acknowledged this fact to the Court. In accordance with Motta and Cohen, therefore, the Court concludes that Cheryl's Motion for Substitution is out of time, and Paul's malpractice claims must be dismissed.
In support of her motion, Cheryl argues that her failure to make timely substitution of Paul's estate should be excused because Lubin & Meyer can demonstrate no prejudice from such delay. The Motta Court, however, expressly rejected the contention that the absence of prejudice can, without more, serve as a proxy for the required showing of excusable neglect. After noting that (as in the present case) the plaintiff's administratrix had " filed no separate motion under rule 6(b) asking for an extension of time due to reasons of excusable neglect, " and further observing that (as in the present case) the administratrix had failed " to describe any extraordinary circumstances or compelling reasons why she filed her motion more than two years late, " the Court addressed the absence of prejudice argument Cheryl has put forward here:
The fact that the defendants would have suffered no prejudice had the plaintiff's motion been allowed, admittedly, is one factor weighing whether her late submission should have been excused. But prejudice, alone, is not determinative. Excusable neglect " for cause shown" under rule 6(b) necessarily means that a party's failure to act within required time periods under one or another of the rules is the result of a reasonable ...