Winchell v. Lubinski, No. 206-3-11 Rdcv (Teachout, J., Sept. 2, 2011)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION
Rutland Unit Docket No. 206-3-11 Rdcv

ROBERT WINCHELL,
Plaintiff

v.

THOMAS LUBINSKI,
Defendant
ENTRY ORDER

Thomas Lubinski, the defendant in this suit, died i n February 2011. Plaintiff Robert Winchell filed his Complaint on March 29, 20 11. On July 25, 2011, Defendant’s attorney filed a Motion to Dismiss on the grounds t hat Mr. Lubinski was deceased at the
time of the commencement of the suit.

Because Mr. Lubinski is deceased, he is not the pr oper defendant for this suit. If he had died after the suit had been filed, the prop er defendant could have been substituted pursuant to V.R.C.P. 25(a)(1). This rule, which is derived from its federal equivalent, only applies to substitution when a party dies duri ng the pendency of the suit. See Mizukami v. Buras , 419 F.2d 1319, 1320 (5th Cir. 1969); see also 7C Wright, Miller and Kane, Federal Practice & Procedure: Civil 3d § 1951 (“Substitution is not possible if one who was named as a party in fact died before the co mmencement of the action.”).

It cannot be used to correct the problem of a defen dant who is dead at the
commencement of the suit. It is well-settled that a suit brought against a dead person is “void ab initio” or “null and void.” See, e.g., Glover v. State Farm Mut. Auto. Ins. Co.

, 950 A.2d 335 (Pa. Super. Ct. 2008); Brubaker v. Estate of DeLong , 700 N.W.2d 323 (Iowa 2005); Jones v. Lawler , 31 Conn. L. Rptr. 416 (Super. Ct. 2002); Keller v. Walker

, 744 N.E.2d 381 (Ill. App. Ct. 2001); Gailor v. Alsabi , 990 S.W.2d 597 (Ky. 1999). The death of the defendant prior to the filing of the c omplaint leaves the court without subject matter jurisdiction. Glover , 950 A.2d at 339. This jurisdictional defect canno t be cured by an amendment because “there is, technically, nothin g to amend.” Id.

Plaintiff cites to Korda v. Chicago Ins. Co. , 2006 VT 81, 180 Vt. 173, in support of his argument that he be allowed to amend his com plaint by substituting the real party
in interest. Korda , however, concerned a suit brought by insurance ca rriers before they had the formal capacity to bring the suit. Id . at ¶ 14. The Court looked to V.R.C.P. 17(a), “Real Party in Interest,” which provides:

No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonab le time has been allowedafter objection for ratification of commencement of the action by, or joinder or substitution of, the real party in inter est; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest

.

V.R.C.P. 17(a). But the death of the defendant befo re a suit commences is a fundamentally different circumstance than a suit th at “is not prosecuted in the name of the real party in interest.” As such, Rule 25(a)(1) specifically applies to deaths of parties, while Rule 17(a) addresses only plaintiffs. See Esposito v. United State , 368 F.3d 1271, 1277 (10th Cir. 2004) (distinguishing substitution of a defendant under F.R.C.P. 25(a)(1) from substitution of a plaintiff under F.R.C.P. 17( a)). It is not proper to “use the deceased as a place holder until a representative o f the estate has been appointed.” Null v. Easley , No. 4:09-CV-296-Y, 2009 WL 3853765, at *2 (N.D. T ex. Nov. 18, 2009). Because the suit against Mr. Lubinski was a nullity when it was filed, there is nothing for
Plaintiff to amend.

Accordingly, Defendant’s Motion to Dismiss is granted

.

Dated this ___ day of ______________, 2011.

________________________ Hon. Mary Miles Teachout

Superior Judge