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
OCONNOR, AND JOHN DOE,
Defendants.

RESPONSE OF SUSANNAH BREITBART TO PLAINTIFFS MOTION FOR

SUBSTITUTION OF DEFENDANT ANDREW BREITBART (DECEASED)
In response to Plaintiff Shirley Sherrods 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 OConnor and John

Doe as defendants on February 10, 2011, in the Superior Court of the District of Columbia.
Plaintiffs 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 OConnor filed a Notice of Removal on

march 4, 2011.
4.

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

2012.

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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 Breitbarts 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 decedents personal representative or, to the
extent provided by statute, against the decedents 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,

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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)

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 5th day of October, 2013, copies of Non-Party Movant
Susannah Breitbarts Response to Plaintiffs Motion to Substitute was served via CM/ECF, upon
all counsel of record.

__/s/ Eric A. Dubelier

Eric A. Dubelier

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