United States District Court, D. South Carolina, Charleston Division
DAVID C. NORTON UNITED STATES DISTRICT JUDGE
This matter comes before the court on defendant United States of America’s (the “government”) motion to dismiss and motion to strike amended complaint, and plaintiff Marion Thomas Stanley’s (“Mr. Stanley” or “plaintiff”) motion for extension of time. For the reasons set forth below, the court denies the government’s motions to dismiss and to strike the amended complaint and grants plaintiff’s motion for extension of time, allowing plaintiff to file an amended complaint and substitute Ms. Stanley as the proper party.
On or about December 13, 2012, at approximately 10:15 a.m., Mr. Stanley was attending a doctor’s appointment at the VA Medical Center in Augusta, Georgia. Compl. ¶ 6. Mr. Stanley tripped over a rug and fell because the rug was “allowed to become bagged up in the middle so as to move as [Mr. Stanley] crossed the rug, ” sustaining injuries including “acute non-displaced fracture of the surgical neck of the left hip.” Id. ¶ 6-7. On April 11, 2014, Mr. Stanley filed the present action against the government, alleging that it was negligent in failing to keep the premises reasonably safe.
On February 10, 2015, Mr. Stanley’s attorney advised the government that Mr. Stanley had died and that the pleadings would be amended accordingly. Def.’s Mot. to Dismiss, Ex. 1. The government independently determined that Mr. Stanley died on June 15, 2014. See Def.’s Mot. to Dismiss, Ex. 2. On July 7, 2015, the government served Ms. Stanley a Suggestion of Death via registered mail, return receipt requested, restricted delivery. On July 16, 2015, Ms. Stanley signed the receipt for the Suggestion of Death.
On October 8, 2015, Mr. Stanley’s attorney sent the government an email with a Consent Order to Amend the Case Caption attached, requesting the government’s consent to the amended complaint. ECF No. 20, Ex. 1. The government responded, stating:
In regard to the message below, I am unable to consent to an amended complaint that includes a claim for Mrs. Stanley “individually.” She did not file an administrative claim and consequently is barred from asserting any individual claim in court. Since she is the representative of Mr. Stanley’s estate, though, she can pursue his claims.
Also, while I avoid needlessly adding to an opposing lawyer’s work load, the amended complaint needs to be reworded to reflect the new circumstances. I will consent to the filing of an amended complaint that complies with this.
ECF No. 20, Ex. 2. Mr. Stanley’s attorney never responded to the email.
The government filed a motion to dismiss on November 12, 2015, arguing that the court must dismiss the action because Mr. Stanley’s attorney failed to substitute Ms. Stanley as the party to the action as required under Federal Rule of Civil Procedure 25(a)(1). On November 16, 2015, Mr. Stanley’s attorney filed an amended complaint, substituting his wife, Janis Stanley (“Ms. Stanley”), as the personal representative of Mr. Stanley’s estate. ECF No. 20. On November 22, 2015, the government filed a motion to strike the amended complaint because it was not filed within the 90-day deadline. On December 2, 2015, plaintiffs filed a motion to extend the time to substitute a party under Rule 25(a)(1) pursuant to Federal Rule of Civil Procedure 6(b). That same day, plaintiff also filed responses to the government’s motion to dismiss and motion to strike. The government filed replies on December 9, 2015. On December 10, 2015, the government filed a response in opposition to plaintiff’s motion to extend the deadline. The motions have been fully briefed and are now ripe for the court’s review.
A. Federal Rule of Civil Procedure 25(a)(1)
Federal Rule of Civil Procedure 25(a)(1) provides:
If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent’s successor or representative. If the motion is not made within 90 days after service of a statement ...