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Rosario v. Waterhouse

United States District Court, D. Massachusetts

September 27, 2019

VICTOR ROSARIO, Plaintiff,
v.
Lowell Police Officers HAROLD G. WATERHOUSE, JOHN GIUILFOYLE, GARRETT SHEEHAN, JOHN R. NEWELL, GEORGE H. GENTLE, JOSEPH M. McGARRY, LARRY B. McGLASSON, WILFRED DOW, JOHN R. MYERS, and UNKNOWN OFFICERS OF THE LOWELL POLICE DEPARTMENT; Lowell Fire Fighter WILLIAM M. GILLIGAN and UNKNOWN MEMBERS OF THE LOWELL FIRE DEPARTMENT; Massachusetts State Police Officer DAVID A. COONAN, and UNKNOWN OFFICERS OF THE MASSACHUSETTS STATE POLICE; and the CITY OF LOWELL, Defendants.

          ORDER ON MOTION REGARDING DECEASED DEFENDANTS (DOC. NO. 39)

          LEO T. SOROKIN UNITED STATES DISTRICT JUDGE

         Now before the Court is Plaintiff Victor Rosario's Motion Regarding Deceased Defendants. Doc. No. 39. After a hearing on the motion, post-argument submissions from the parties, and careful consideration by the Court, Rosario's motion is DENIED.

         I. BACKGROUND [[1]]

         In 1983, Rosario was convicted of arson and eight counts of second-degree murder following an investigation into a fire that occurred on Decatur Street in Lowell, Massachusetts. As a result, Rosario was incarcerated for 32 years. In 2017, Rosario's motion for a new trial, originally granted by Middlesex County Superior Court, was affirmed by the Supreme Judicial Court of Massachusetts. Commonwealth v. Rosario, 74 N.E.3d 599 (Mass. 2017). Thereafter, the Middlesex District Attorney's office declined to proceed with a new trial. Upon his release from prison, Rosario brought several 42 U.S.C. § 1983 and state tort law claims against Lowell police officers and supervisors, Lowell Fire Department officials and fire fighters, Massachusetts State Police officers and supervisors, and the City of Lowell alleging that unconstitutional interrogation techniques and fabricated evidence resulted in his allegedly wrongful conviction.

         After filing his complaint, however, Rosario learned that five defendants-William M. Gilligan, John R. Newell, Joseph M. McGarry, Larry B. McGlasson, and John R. Myers (“Deceased Defendants”)-are deceased. Subsequently, Rosario filed the instant motion requesting the Court's permission to proceed against the Deceased Defendants, either by: (1) appointing Lowell City Clerk Michael Geary “as personal representative to defend the suit on behalf of each of the Deceased Defendants” under Federal Rule of Civil Procedure 25; or (2) serving Defendant City of Lowell as the true party in interest pursuant to a provision of the Massachusetts Uniform Probate Code, Mass. Gen. Laws ch. 190B, § 3-803(d)(2). Doc. No. 40 at 3-4.

         II. DISCUSSION

         The Court considers, in turn, Rosario's two proposals for proceeding against the Deceased Defendants.

         A. Rule 25

         Federal Rule of Civil Procedure 25 provides that if “a party dies and [a] claim is not extinguished, ” a court “may order substitution of [a] proper party, ” including a decedent's successor or representative. Fed.R.Civ.P. 25(a)(1). Federal courts have consistently held that Rule 25(a)(1) “only applies to parties-that is, defendants that have been served with a complaint and then died after service.” Deleon-Reyes v. Guevara, No. 18-CV-01028, 2019 WL 1200348, at *1 (N.D. Ill. Mar. 14, 2019) (emphasis in original); see also Moul v. Pace, 261 F.Supp. 616, 618 (D. Md. 1966) (“Rule 25(a)(1) does not apply in this case because the defendant Pace was deceased at the time the suit was filed.”). As none of the Deceased Defendants were parties to this suit at the time of their deaths, Rule 25 is inapposite.[2]

         B. Massachusetts Uniform Probate Code Section 3-803(d)(2)

         The parties also dispute whether Rosario may proceed by naming the Deceased Defendants as parties but serving process on the City of Lowell, a process that Rosario argues is sanctioned by state law. Under Massachusetts probate law, a litigant generally may not bring an action against the personal representative of an estate “unless such action is commenced within 1 year after the date of the death of the deceased.” Mass. Gen. Laws ch. 190B, § 3-803(a).

         However, subsection (d)(2) creates an exception to that general rule:

Nothing in this section affects or prevents . . . an action for personal injury or death, if commenced more than 1 year after the date of death of the decedent, brought against the personal representative; provided further, that the action is commenced not later than 3 years after the cause of action accrues; and provided further, that a judgment recovered in that action shall only be satisfied from the proceeds of a policy of liability bond or liability insurance, if any, and not from the general assets of the estate; and provided further, that if a personal representative has not been appointed, then an action otherwise allowed pursuant to this chapter may be maintained without such appointment, and shall be maintained ...

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