United States District Court, D. Massachusetts
ORDER ON MOTION REGARDING DECEASED DEFENDANTS (DOC.
SOROKIN UNITED STATES DISTRICT JUDGE
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
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
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.
Court considers, in turn, Rosario's two proposals for
proceeding against the Deceased Defendants.
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.
Massachusetts Uniform Probate Code Section
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).
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 ...