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Shirley Sherrod Case - Motion to add Susannah Breitbart to Case

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					             Case 1:11-cv-00477-RJL Document 68 Filed 09/18/13 Page 1 of 3



                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA


                                                     )
SHIRLEY SHERROD,                                     )
                                                     )
                        Plaintiff,                   )
                                                     )
                                                             Civ. A. No. 11-00477 (RJL)
                v.                                   )
                                                     )
ANDREW BREITBART et al.,                             )
                                                     )
                        Defendants.                  )
                                                     )

                           PLAINTIFF SHIRLEY SHERROD’S
                       MOTION FOR SUBSTITUTION OF DECEASED
                          DEFENDANT ANDREW BREITBART

        Pursuant to Federal Rule of Civil Procedure 25(a)(1), Plaintiff Shirley Sherrod

respectfully moves to substitute “Susannah Breitbart, as successor to Andrew Breitbart,

Deceased” in place of now-deceased Defendant Andrew Breitbart. In support of the Motion,

Plaintiff states as follows:

        1.      On February 11, 2011, Plaintiff Shirley Sherrod filed this lawsuit in the Superior

Court of the District of Columbia against Andrew Breitbart, Larry O’Connor, and a person

indentified in the Complaint as JOHN DOE, alleging claims for defamation, false light invasion

of privacy, and intentional infliction of emotional distress. On March 4, 2011, Defendants

Breitbart and O’Connor filed a Notice of Removal [Dkt. 1] to this Court.

        2.      Although a formal suggestion of death was never made on the record in this

Court, Plaintiff believes based on media reports that Mr. Breitbart passed away on March 1,

2012.

        3.      Responding to the Court’s inquiries on the status of any estate regarding Mr.

Breitbart, on October 31, 2012, Mr. Breitbart’s former counsel represented to the Court that
            Case 1:11-cv-00477-RJL Document 68 Filed 09/18/13 Page 2 of 3



“[n]o estate has been opened; and, there are no pending or imminent plans to open an estate for

Mr. Breitbart.” Oct. 31, 2012 Report [Dkt. 60]. Mr. Breitbart’s former counsel did not identify

to the Court a representative or successor who may be substituted as a party.

       4.      On June 25, 2013, the D.C. Circuit affirmed this Court’s ruling denying

Defendant’s motion to dismiss under the D.C. Anti-SLAPP Act. [D.C. Cir. # 1443072]. The

mandate issued on August 6, 2013. [Dkt. 64].

       5.      On September 4, 2013, Mr. Breitbart’s former counsel served a letter on

Plaintiff’s counsel stating that “[w]e have confirmed with counsel for Mr. Breitbart’s widow, Ms.

Susannah Breitbart, that no estate has been opened for or with regard to Mr. Breitbart; and, thus,

no executor, trustee, successor, or other legal representative has been appointed to administer

Mr. Breitbart’s post-mortem affairs.” The letter further provided that the “heirs of / successors

to” Mr. Breitbart are Ms. Susannah Breitbart and her four minor children.

       6.      Plaintiff’s lawsuit against Mr. Breitbart was timely filed, survives his death, and

may be continued against his successor. See D.C. Code § 12-101; Sinito v. United States Dep’t

of Justice, 176 F.3d 512, 516 (D.C. Cir. 1999); McSurely v. McClellan, 753 F.2d 88, 98-99 (D.C.

Cir. 1985) (holding spouses of decedents were “proper parties” for substitution); see also Cal.

Probate Code § 13550 (“Except as provided in Sections 11446, 13552, 13553, and 13554, upon

the death of a married person, the surviving spouse is personally liable for the debts of the

deceased spouse chargeable against the property described in Section 13551 to the extent

provided in Section 13551.”); Estate of Bonanno v. Connolly, 165 Cal. App. 4th 7, 20 (2008)

(“[A] surviving spouse who receives a decedent’s property without administration becomes

personally liable or decedent’s debts chargeable against such property, within limits.”).




                                                 2
            Case 1:11-cv-00477-RJL Document 68 Filed 09/18/13 Page 3 of 3



       7.      At the September 11, 2013 status conference, the Court requested that Plaintiff

submit her motion for substitution by September 18, 2013. Counsel for Defendant O’Connor

provided copies of two insurance policies to Plaintiff on September 13, 2013, and Plaintiff has

inquired further about the amount of coverage remaining. Plaintiff reserves her right to amend

this request as discovery proceeds and additional information comes to light, including with

respect to any insurance agreements concerning a possible judgment against Mr. O’Connor or

Mr. Breitbart (or Mr. Breitbart’s heirs, successors, or estate) in this matter.

       8.      Pursuant to Local Rule 7(m), Plaintiff has conferred with counsel for Mr.

O’Connor regarding this motion. Counsel for Defendant O’Connor advised that he is not able to

take a position on the relief requested at this time.


 Dated: September 18, 2013                              Respectfully submitted,

                                                    /s/ Thomas A. Clare, P.C.
                                                   Thomas D. Yannucci, P.C. (D.C. Bar #358989)
                                                   Michael D. Jones (D.C. Bar #417681)
                                                   Thomas A. Clare, P.C. (D.C. Bar #461964)
                                                   Beth A. Williams (D.C. Bar #502522)
                                                   Peter A. Farrell (D.C. Bar # 975579)
                                                   KIRKLAND & ELLIS LLP
                                                   655 Fifteenth Street, N.W.
                                                   Washington, DC 20005
                                                   Tel: (202) 879-5000
                                                   Fax: (202) 879-5200
                                                   thomas.yannucci@kirkland.com
                                                   michael.jones@kirkland.com
                                                   thomas.clare@kirkland.com
                                                   beth.williams@kirkland.com
                                                   peter.farrell@kirkland.com

                                                   Attorneys for Plaintiff




                                                   3
          Case 1:11-cv-00477-RJL Document 68-1 Filed 09/18/13 Page 1 of 2



                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


                                                     )
SHIRLEY SHERROD,                                     )
                                                     )
                      Plaintiff,                     )
                                                     )
                                                             Civ. A. No. 11-00477 (RJL)
              v.                                     )
                                                     )
ANDREW BREITBART et al.,                             )
                                                     )
                      Defendants.                    )
                                                     )

                                    [PROPOSED]ORDER

       Upon consideration of Plaintiff Shirley Sherrod’s Motion for Substitution of Parties, it is

hereby:

       ORDERED that Plaintiff’s motion is GRANTED; it is further

       ORDERED that “Susannah Breitbart, as successor to Andrew Breitbart, Deceased” shall

be substituted for Defendant Andrew Breitbart.

       SO ORDERED.

 Dated: _______________
                                                 RICHARD J. LEON
                                                 United States District
        Case 1:11-cv-00477-RJL Document 68-1 Filed 09/18/13 Page 2 of 2



Copies to:

Thomas D. Yannucci, P.C.
Michael D. Jones
Thomas A. Clare, P.C.
Beth A. Williams
Peter A. Farrell
KIRKLAND & ELLIS LLP
655 Fifteenth Street, N.W.
Washington, DC 20005
Attorneys for Plaintiff Shirley Sherrod

Bruce W. Sanford
Mark I. Bailen
BAKER & HOSTETLER LLP
1050 Connecticut Avenue NW
Suite 1100
Washington, DC 20036
Attorneys for Defendant Larry O’Connor

Alan D. Croll
KATTEN MUCHIN ROSENMAN LLP
2029 Century Park East, Suite 2600
Los Angeles, CA 90067-3012
Attorneys for Defendant Andrew Breitbart

Glen Donath
KATTEN MUCHIN ROSENMAN LLP
2900 K Street, N.W., Suite 200
Washington, DC 20007-5118
Attorney for Defendant Andrew Breitbart

				
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