Free Motion to Dismiss - District Court of Colorado - Colorado

Case 1:04-cv-00714-CBS-MJW

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Filed 09/09/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00714-CBS-MJW KENNETH PICHOTTA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

DEFENDANT'S UNOPPOSED MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 25(a)(1)

Defendant United States of America, through its undersigned counsel, moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 25(a)(1), upon the following grounds. 1. Kenneth Pichotta filed this medical malpractice action on April 9, 2004

against the United States of America. 2. On November 12, 2004, Mr. Pichotta's counsel filed and served a motion to

stay proceedings, in which he informed the Court that Mr. Pichotta had died on October 8, 2004. See Docket No. 23. 3. At a Status Conference on March 16, 2005, the Court directed Defendant to

file a motion to dismiss this action pursuant to Federal Rule of Civil Procedure 25(a)(1).

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4.

Defendant subsequently served a Suggestion of Death on the Record in

accordance with Rule 25(a)(1), in the format provided in Federal Form 30. The suggestion was served on Mr. Pichotta's former counsel by mail on June 2, 2005. It was also served by hand on all of Mr. Pichotta's potential next of kin, as identified by Mr. Pichotta's former counsel. Specifically, it was served on (1) Elizabeth Marie Pichotta, Mr. Pichotta's former wife, by hand on April 14, 2005, (2) Rayannon Pichotta, Mr. Pichotta's only daughter, by hand on April 14, 2005, and (3) Maureen Kelly, Mr. Pichotta's former girlfriend, by leaving it with her mother on May 24, 2005. See Docket No. 38 (showing dates and manner of service in the certificates of service). After service had been accomplished on all parties, the Suggestion of Death was filed with the Court on June 2, 2005. 5. More than ninety days have passed since the Suggestion of Death was

served and filed, but no motion for substitution has been filed by any party, by any successors or representatives of Mr. Pichotta, or by any other person. ARGUMENT Federal Rule of Civil Procedure 25(a)(1) provides that upon the death of a party, a party or successor may move for substitution by serving the parties, as well as any interested non-parties (successors or representatives of the deceased party) in accordance with Rule 4. The rule further provides, in relevant part: Unless the motion for substitution is made no later than 90 days after the death is suggested on the record by service of a statement of the

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fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party. Fed. R. Civ. P 25(a)(1). Because no motion for substitution has made by any persons within 90 days after service of the Suggestion of Death in this action, the Court should dismiss this action with prejudice pursuant to Rule 25(a)(1). Pursuant to D.C.COLO.LCivR 7.1(A), undersigned counsel for Defendant certifies that he has conferred regarding this motion with counsel for the late Mr. Pichotta (Dennis Wanebo, Esq.). Mr. Wanebo's assistant informed undersigned counsel that as Mr. Wanebo's client is deceased, Mr. Wanebo had no objection to this motion. WHEREFORE, for the reasons stated, Defendant respectfully requests that the Court enter an order dismissing the Complaint. A proposed order is attached. Dated this 9th day of September, 2005. WILLIAM J. LEONE United States Attorney

s/Kevin T. Traskos By: Kevin Traskos Habib Nasrullah Assistant United States Attorneys 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Office: (303) 454-0100 Facsimile: (303) 454-0404 E-mail: [email protected] Attorney for Defendant

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on September 9, 2005 I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses: Habib Nasrullah [email protected] [email protected] Dennis B. Wanebo [email protected] [email protected] , and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name: Agency Counsel: Ida Stark, Esq. (mail) Department of Health and Human Services Office of the General Counsel General Law Division Cohen Building, Room 4760 330 Independence Avenue, S.W. Washington, D.C. 20201 s/Kevin T. Traskos Kevin T. Traskos Attorney for Defendant United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0404 E-mail: [email protected]