OPINION AND ORDER
WILLIAM M. CONLEY, District Judge.
In this case, plaintiffs allege a variety of claims arising out of Wesley Sydow's exposure to asbestos, which culminated in mesothelioma diagnosis. Wesley Sydow passed away on March 29, 2015, leaving his wife Theresa Sydow to pursue their claims.
On March 31, 2015, Owens-Illinois filed a notice of death pursuant to Federal Rules of Civil Procedure 5 and 25. On July 2, 2015, Owens-Illinois filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 25, requiring that a proper party be substituted within 90 days after service of a statement noting death, if the original party dies and the claim is not extinguished. Owens-Illinois argues that a new plaintiff had not properly been substituted for the deceased Wesley Sydow and, therefore, the claims should be dismissed. On July 8 and 9, 2015, respectively, 3M and Weyerhaeuser filed motions to join Owens-Illinois's motion to dismiss.
On August 5, 2015, plaintiff and Owens-Illinois filed a stipulated dismissal of the claims against Owens-Illinois. This left 3M and Weyerhaeuser until August 17, 2015, to file a reply brief in support of Owens-Illinois's motion to dismiss. Neither did so, nor did they otherwise indicate any interest in pursuing the pending motion to dismiss.
On June 9, 2015, Theresa Sydow became the special administrator for Wesley Sydow's estate. (Mot. to Amend Compl., Ex. 2 (dkt # 231). After Owens-Illinois filed its motion to dismiss on July 24, 2015, Theresa Sydow, moved for leave to amend her complaint a third time. The proposed amended complaint lists Theresa Sydow as plaintiff, both individually and as the estate's special administrator, allowing her to maintain Wesley Sydow's claims that survived his death, presumably to satisfy Rule 25. Nevertheless, 3M and Weyerhaeuser chose not to oppose this motion.
Given 3M and Weyerhaeuser's failure to file a reply brief in support of their motion to dismiss, or to oppose Theresa Sydow's motion for leave to file a third amended complaint, 3M and Weyerhaeuser has effectively waived any opposition to Theresa maintaining her husband's claims. Moreover, even if not waived, 3M and Weyerhaeuser's motions to dismiss would have little practical effect.
This litigation has been ongoing for a year and a half with a trial date already set for June 2016. After Wesley Sydow's death, 3M and Weyerhaeuser continued to defend Theresa Sydow's claims. Dismissing the case, and allowing her to refile would only delay the ongoing litigation,
Finally, there is plaintiff's motion for leave to file a third amended complaint, which merely seeks to substitute Theresa Sydow as special administrator for Wesley Sydow's estate and to add a wrongful death claim on behalf of Theresa Sydow. Under Federal Rule of Civil Procedure 15(a), the court should grant parties leave to amend when justice so requires. Accordingly, a plaintiff ought to be afforded the opportunity to test the merits of his or her claim, absent any apparent or declared reason, like undue delay, repeated failure to cure deficiencies, bad faith, or undue prejudice. Foman v. Davis, 371 U.S. 178, 182 (1962).
Very early in this case, Theresa Sydow was added as a plaintiff, and shortly after her husband's death, she was declared special administrator of his estate. Moreover, within 45 days, Theresa moved for leave to amend the complaint and to substitute her husband in her capacity as special administrator of his estate. The court does not view this as an undue delay, nor is there evidence of repeated failure to cure the complaint's deficiency. Furthermore, plaintiff, 3M, and Weyerhaeuser have continued to pursue the litigation — filing motions, taking depositions, etc. Therefore, there has neither been a failure to pursue the claim nor to cause delay.
Although this all could have been avoided if plaintiff's attorneys had promptly filed for substitution, the court finds no bad faith in their failure to do so. Tatterson v. Koppers Co., 104 F.R.D. 19, 21 (W.D. Penn. 1984).
IT IS ORDERED that: