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Shirley Sherrod Case - Susannah Breitbart Opposition to Motion to Add Her to Case

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					             Case 1:11-cv-00477-RJL Document 75 Filed 10/05/13 Page 1 of 4



                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA



SHIRLEY SHERROD

                        Plaintiff,
                 v.
                                                        Case No. 1:11-cv-00477 (RJL)
ANDREW BREITBART, LARRY
O’CONNOR, AND JOHN DOE,

                        Defendants.



        RESPONSE OF SUSANNAH BREITBART TO PLAINTIFF’S MOTION FOR
         SUBSTITUTION OF DEFENDANT ANDREW BREITBART (DECEASED)

        In response to Plaintiff Shirley Sherrod’s Motion for Substitution of Deceased Defendant

(“Motion”), Susannah Breitbart (“Mrs. Breitbart”), a successor to defendant Andrew Breitbart

(deceased), states as follows:


        1.       Plaintiff filed this action naming Andrew Breitbart, Larry O’Connor and John

Doe as defendants on February 10, 2011, in the Superior Court of the District of Columbia.

Plaintiff’s complaint seeks, inter alia, an award of punitive damages against Andrew Breitbart.


        2.       Andrew Breitbart, a California resident, was personally served within the District

of Columbia with a copy of the Summons and Complaint on February 11, 2011.


        3.       Defendants Andrew Breitbart and Larry O’Connor filed a Notice of Removal on

march 4, 2011.


        4.       Andrew Breitbart died intestate in Los Angeles County, California, on March 1,

2012.


                                                                  US_ACTIVE-114692059.3-HJDOSSIC 10/05/2013 3:24 PM
            Case 1:11-cv-00477-RJL Document 75 Filed 10/05/13 Page 2 of 4



       5.      Mrs. Breitbart, a California resident, is the surviving spouse of Andrew Breitbart.

Mrs. Breitbart and her four minor children are the heirs of and successors to Andrew Breitbart

(deceased) under California law.


       6.      Mrs. Breitbart was not named as a defendant in this action prior to the date of

Andrew Breitbart’s death nor at any time subsequent thereto.


       7.      On September 18, 2013, Plaintiff filed the Motion to substitute Mrs. Breitbart in

place of her late husband as a defendant in this matter.


       8.      As grounds for the Motion, Plaintiff asserts that Mrs. Breitbart may be substituted

as a defendant in place of Andrew Breitbart (deceased) pursuant to California law, including

California Probate Code §13550. See Motion, at ¶ 6.


       9.      Plaintiff does not acknowledge in her Motion the applicable limitations of

California Code of Civil Procedure § 377.42, which states as follows:


               In an action or proceeding against a decedent’s personal representative or, to the

               extent provided by statute, against the decedent’s successor in interest, all

               damages are recoverable that might have been recovered against the decedent had

               the decedent lived except damages recoverable under Section 3294 of the Civil

               Code or other punitive or exemplary damages. (Emphasis added.)


       10.     Plaintiff appears to seek recovery from Mrs. Breitbart in excess of amounts

allowed pursuant to controlling California law, including inter alia Code of Civil Procedure §

377.42 and California Probate Code §§ 550-555,




                                                -2-
          Case 1:11-cv-00477-RJL Document 75 Filed 10/05/13 Page 3 of 4



       11.     Mrs. Breitbart objects to the motion to substitute her in place of her late husband

as a defendant in this matter to the extent that Plaintiff is seeking recovery as set forth in

Paragraph 10 herein, and, hereby fully reserves all rights, remedies, claims and defenses to the

claims alleged by Plaintiff in this action, including without limitation, her rights and defenses

under California law, to prevent Plaintiff from seeking to recover punitive or other unavailable

damages or relief against Mrs. Breitbart or any of her children.


       WHEREFORE, Mrs. Breitbart, as a successor to Andrew Breitbart (deceased),

respectfully objects to the motion to substitute her in place of her late husband as a defendant in

this matter to the extent that Plaintiff is seeking to recover as set forth in Paragraph 10 herein


                                                       Respectfully Submitted,


                                                        __/s/ Eric A. Dubelier______________
                                                       REED SMITH LLP
                                                       Eric A. Dubelier (Bar. No. 419412)
                                                       Daniel Z. Herbst (Bar. No. 501161)
                                                       1301 K Street NW
                                                       Suite 1100 – East Tower
                                                       Washington DC 20005
                                                       edubelier@reedsmith.com
                                                       dherbst@reedsmith.com

                                                       Attorneys for Susannah Breitbart, a
                                                       successor to Andrew Breitbart (deceased)




                                                 -3-
          Case 1:11-cv-00477-RJL Document 75 Filed 10/05/13 Page 4 of 4



                              CERTIFICATE OF SERVICE


       I HEREBY CERTIFY that on this 5th day of October, 2013, copies of Non-Party Movant

Susannah Breitbart’s Response to Plaintiff’s Motion to Substitute was served via CM/ECF, upon

all counsel of record.



                                                  __/s/ Eric A. Dubelier
                                                      Eric A. Dubelier




                                                             US_ACTIVE-114692059.3-HJDOSSIC 10/05/2013 3:24 PM

				
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