SHASAKU MIZUKAMI, GOSAKU MIZUKAMI, ET AL., PLAINTIFFS-APPELLANTS,
v.
PETER R. BURAS, CONNECTICUT FIRE INSURANCE CO., ET AL., BEFENDANTS-APPELLEES
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The court held that substitution of heirs for a deceased defendant is not permitted when the defendant died before the action was filed, and dismissal for lack of jurisdiction was proper due to insufficient amount in controversy.
Plaintiffs sued a deceased individual and his insurer for wrongful death. The individual died before the lawsuit was filed, and the insurance policy l…
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PER CURIAM.
Appellants, citizens of Japan, seek review of an order of dismissal in a diversity action filed by them in the United States District Court for the Eastern District of Louisiana. The suit was initiated against Peter R. Buras and his insurance carrier, Connecticut Fire Insurance Company, to recover for the death of Shasaku Mizukami. As to Peter R. Buras, the court found that he was deceased at the time the suit was filed and denied substitution of his heirs as parties. The court dismissed the action against the insurance carrier for failure to join an indispensable party and for lack of jurisdiction. We affirm.
On October 15, 1965, Shasaku Mizuka-mi was struck and killed by a pickup truck owned and operated by Peter R. Buras. The instant action was filed on October 17, 1966, naming Buras and Connecticut Fire Insurance Company as defendants. Service on Buras was never accomplished since he had died in July of 1966.
Appellants moved to substitute the heirs of Peter R. Buras as parties defendant. Rule 25(a) (1) F.R.Civ. Pro., allows substitution for a deceased party where the claim is not extinguished by his death. However, as the district court noted, the rule contemplates substitution for someone who had been made a party before his death. It is not available to the appellants in the present case since Buras predeceased the filing of the action. Chorney v. Callahan, 135 F.Supp. 35 (D.Mass.1955).
The court’s dismissal of the claim against Connecticut Fire Insurance Company for lack of subject matter jurisdiction was also proper. That company’s policy with Peter R. Buras was limited in amount to $5,000 for each person injured and $10,000 for each accident. Thus, the amount in controversy does not exceed $10,000 as is required to support jurisdiction grounded on diversity of citizenship. 28 U.S.C.A. § 1332.
The judgment is affirmed.
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Martino v. Am. Sec. Ins. Co. (S.D. Fla. 2022)…this case because Jerry Martino’s death prior to this suit’s commencement renders the lawsuit “a legal nullity.” ECF No. [17] at 3. Defendant argues that Rule 25 does not permit substitution in such a situation. Id. at 4 (citing Mizukami v. Buras, 419 F. 2d 1319, 1320 (5th Cir. 1969)). In Response, Plaintiff’s counsel admits that it was due to his “oversight” that this lawsuit was filed in Jerry Martino’s name. ECF No. [18] at 1; id. at 3 (“It was counsel’s error, not Mrs. Martino’s that led to Jerry Mar…