Raduano et al v. Testa

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
MICHELLE RADUANO,
individually
and in her capacity as a Beneficiary of
the Estate of Elaine Raduano; and
WILLIAM J. FLYNN,
in his capacity
as Trustee of the Elaine Raduano
Revocable Trust – 2018,
Plaintiffs,
v.
MAR-CIA TESTA,
individually and in
her capacity as Executrix of the Estate
of Elaine Raduano,
Defendant.
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No. 23-cv-101-JJM-PAS
MEMORANDUM AND ORDER
JOHN J. MCCONNELL, JR., United States District Court Chief Judge.
This action stems from a dispute among siblings concerning the assets of a
trust created by the siblings’ now-deceased mother. The Court previously dismissed
this case without prejudice.
	See ECF No. 15. 	Now pending before the Court is a
motion by Plaintiff William J. Flynn, who serves as Trustee of the Trust, to reopen
this proceeding and a motion to allow for amendment of the original complaint.1
See
ECF Nos. 18, 19. Defendant Mar-cia Testa, daughter of the decedent objects to both
motions.
See ECF Nos. 23, 24.
1 While Michelle Raduano, daughter of the decedent, was a named plaintiff in
the original complaint, these motions are filed solely by Mr. Flynn on behalf of the
Raduano Revocable Trust – 2018.
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For the reasons that follow, the Court GRANTS Mr. Flynn’s Motion to Reopen,
as well as his Motion to Amend. ECF Nos. 18, 19.
I. 	BACKGROUND
Michelle Raduano and Mar-cia Testa are the two surviving daughters of Elaine
M. Raduano (“Elaine”).2 	ECF No. 18 at 3. 	The facts of this case primarily revolve
around two actions, taken either by Elaine or on Elaine’s behalf, in the years leading
up to her death.
The first action involves the opening of a Fidelity brokerage account (“the
Fidelity Account”), which is alleged to have taken place on September 29, 2017. ECF
No. 18 at 3. The Fidelity Account was opened in Elaine’s name, and it designates Ms.
Testa as a “joint account holder” with “rights of survivorship.”
Id.
The second action involves the creation of the Elaine Raduano Revocable Trust
– 2018 (“the Trust”), which was established on November 20, 2018, and amended on
March 8, 2019.
	Id.;
see also ECF No. 18-1 at 37. The Trust names Ms. Raduano as
the Beneficiary and Mr. Flynn as the Trustee. ECF No. 18 at 1, 4.
On May 5, 2020, Elaine passed away from complications of kidney cancer.
Id.;
ECF No. 18-1 at 11. On July 21, 2020, the Portsmouth Probate Court appointed Ms.
Testa as the Executrix of Elaine’s Estate (“the Estate”). 	ECF No. 18 at 2, 10. 	Ms.
Testa also took over the Fidelity Account via survivorship.
	Id. at 2. 	Ms. Testa
2 To avoid confusion between Michelle Raduano and Elaine Raduano, the Court
will refer to Elaine Raduano hereafter as “Elaine.”
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subsequently filed an inventory in the Portsmouth Probate Court.
	Id. Notably, the
Fidelity Account was not inventoried as an asset of the Estate.
Id.; ECF No. 18 at 6.
Believing that Ms. Testa had fraudulently obtained her right of survivorship
and that the Fidelity Account should have been treated as an Estate asset, Ms.
Raduano and Mr. Flynn enlisted in the services of Attorney Stephen A. Rodio.
	See
ECF No. 1. On March 10, 2023, Mr. Rodio filed a lawsuit in this Court on their behalf,
alleging 	a 	variety 	of 	common-law 	tort 	claims 	against 	Ms. 	Testa 	(“the 	2023
Complaint”).
Id.
Ms. Testa later moved to dismiss the 2023 Complaint.
See ECF No. 7. Citing
Ms. Raduano and Mr. Flynn’s failure to pursue their statutory remedies under R.I.
Gen. Laws § 33-18-173 before filing their common-law claims, the Court dismissed
3 Section 33-18-17, which is referred to as an “[a]ction in name of estate
prosecuted by interested person,” provides:
If an administrator, executor, or guardian shall be requested by any
person legally interested in the estate of a deceased person, or person
under guardianship, to commence an action or proceeding to recover any
property, personal or real, which the legally interested person may have
reason to believe should be recovered for the benefit of the estate, and if
the administrator, executor, or guardian shall, for fifteen (15) days after
written notice so to do, either personally delivered to himself or herself
or his or her agent, or left at the last and usual place of abode of himself
or herself or his or her agent, refuse, neglect or for any reason be
incompetent, 	to 	commence 	the 	action 	or 	proceeding, 	the 	legally
interested person may institute proceedings in the name of the estate of
the deceased person, or person under guardianship, in the same manner
and to the same extent as the administrator, executor, or guardian may
do in the case of personal property, and in the case of real estate in the
same manner as a guardian, devisee, or heir at law may do, to recover
the property.
R.I. Gen. Laws § 33-18-17.
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the 2023 Complaint without prejudice on July 24, 2023 (“the 2023 Order”).
See ECF
No. 15 at 5. However, before doing so, the Court advised the parties that the Section
33-18-17 statutory claim could be pursued “in any court of competent jurisdiction,”
including in federal court.
Id. at 4 n.4.
Following the 2023 Order, Mr. Flynn reached out to his attorney, Joseph R.
Marion, to have him re-engage the services of Mr. Rodio and request that he pursue
another claim on behalf of the Trust under Section 33-18-17. 	ECF No. 18 at 5;
see
also ECF No. 18-1 at 32-33 (displaying affidavit of Mr. Flynn). Mr. Rodio confirmed
his engagement in writing on April 25, 2024. ECF No. 18 at 5; ECF No. 18-1 at 33.
However, despite multiple communications from Mr. Flynn, Mr. Rodio never pursued
the statutory claim and provided no explanation for failing to do so. 	ECF No. 18 at
5;
see also ECF No. 18-1 at 33.
Meanwhile, Ms. Raduano contacted Mr. Flynn several times to inquire about
the new claim against Ms. Testa. ECF No. 18 at 5. Over the ensuing years, however,
Mr. Flynn would lose contact with Ms. Raduano for extended periods of time as she
underwent multiple periods of incarceration and homelessness.
Id.;
see also ECF No.
18-1 at 174-82 (displaying Ms. Raduano’s criminal history).
In the Fall of 2024, having determined that Mr. Rodio had failed to act with
the appropriate diligence in asserting the new claim on behalf of the Trust, Mr. Flynn
decided it was time to find new counsel. ECF No. 18 at 6. This too proved challenging
because the Trust had since become relatively insolvent, and Mr. Flynn could only
afford to pay a new lawyer on a contingency fee basis.
Id.
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Toward the end of 2024, Mr. Flynn retained the services of KSPR Law to
represent the interests of the Trust.
	Id. On February 26, 2025, Mr. Flynn, through
counsel and pursuant to Section 33-18-17, made a demand upon Ms. Testa to return
the Fidelity Account to the Estate.
	Id.;
see also ECF No. 18-1 at 184-85 (displaying
statutory demand).
When there was no response to the demand, Mr. Flynn then filed a separate
lawsuit in this Court against Ms. Testa on April 17, 2025 (“the 2025 Complaint”).
ECF No. 18 at 6. 	My colleague Judge Melissa R. DuBose later dismissed the 2025
Complaint, finding that it had been untimely filed.
	See Flynn v. Testa, No. 25-cv-
164-MRD-PAS, slip op. at 5 (D.R.I. Dec. 5, 2025).
Finally, on September 11, 2025, Mr. Flynn filed a Motion to Reopen this case.
See ECF No. 18. He also filed a Motion to Amend the 2023 Complaint.
See ECF No.
19. Ms. Testa objects to both motions.
See ECF Nos. 23, 24;
see also ECF No. 28.
II. 	MOTION TO REOPEN
A. 	Legal Standard
Rule 60(b) of the Federal Rules of Civil Procedure provides that, “[o]n motion
and just terms,” a district court is authorized to “relieve a party or its legal
representative from a final judgment, order, or proceeding.” 	Fed. R. Civ. P. 60(b).
There are six enumerated grounds for granting such a motion, the first five of which
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describe a particular basis for relief.4
	See Ungar v. Palestine Liberation Org., 599
F.3d 79, 83 (1st Cir. 2010).
However, the last ground, Rule 60(b)(6), is a “catch-all provision” 5 that permits
a court to grant relief for “any other reason that justifies relief.” 	Fed. R. Civ. P.
60(b)(6). “The decision to grant or deny such relief is inherently equitable in nature.”
Ungar, 599 F.3d at 83 (citing
United States v. One Star Class Sloop Sailboat, 458
F.3d 16, 25-26 & n. 10 (1st Cir. 2006);
Teamsters, Chauffeurs, Warehousemen &
Helpers Union v. Superline Transp. Co., 953 F.2d 17, 19-20 (1st Cir. 1992)).
The Supreme Court and the First Circuit have interpreted Rule 60(b)(6) to
require a showing of “‘exceptional circumstances’ suggesting that the party is
faultless in the delay.’”
Davila-Alvarez v. Escuela de Medicina Universidad Cent. del
Caribe, 257 F.3d 58, 67 (1st Cir. 2001) (quoting
Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993)). This requirement reflects the need to
“balance the ‘competing policies’ of finality of judgments and resolving litigation on
4 The first five grounds for granting such relief are as follows: (1) “mistake,
inadvertence, surprise, or excusable neglect”; (2) “newly discovered evidence that,
with reasonable diligence, could not have been discovered in time to move for a new
trial under Rule 59(b)”; (3) “fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party”; (4) “the judgment is void”;
or (5) the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively is no
longer equitable.” Fed. R. Civ. P. 60(b)(1)-(5).
5 Because of Rule 60(b)(6)’s “catch-all quality,” relief under this subsection “is
only appropriate where subsections (1) through (5) do not apply.”
	United States v.
Baus, 834 F.2d 1114, 1121 (1st Cir. 1987). Here, neither of the parties argue that any
other subsection besides Rule 60(b)(6) applies. 	Nor does the Court find that any of
the other subsections apply to the facts of this case.
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the merits.”
	Bouret-Echevarria v. Caribbean Aviation Maint. Corp., 784 F.3d 37, 43
(1st Cir. 2015).
In striking such a balance, factors to be considered by a court include: “(1) the
motion’s timeliness, (2) whether exceptional circumstances justify extraordinary
relief, (3) whether the movant can show a potentially meritorious claim or defense,
which, if proven, could bring her success at trial, and (4) the likelihood of unfair
prejudice to the opposing party.”
	Id. (citing
Teamsters, 953 F.2d at 20). 	It is
important to note that “[t]his compendium is neither exclusive nor rigidly applied.
Rather, 	the 	listed 	factors 	are 	incorporated 	into 	a 	holistic 	appraisal 	of 	the
circumstances.”
	Ungar, 599 F.3d at 83-84. “[T]here is no ironclad rule requiring an
in-depth, multi-factored analysis in every case. Sometimes one factor predominates
to such an extent that it inexorably dictates the result.”
	Id. at 86 (citing
Aguiar-
Carrasquillo v. Agosto-Alicea, 445 F.3d 19, 28-29 (1st Cir. 2006);
Paul Revere
Variable Annuity Ins. Co. v. Zang, 248 F.3d 1, 5 (1st Cir. 2001)).
B. 	Analysis
In addressing Mr. Flynn’s Motion to Reopen, the Court will analyze each of the
Rule 60(b)(6) factors in turn.
See Bouret-Echevarria, 784 F.3d at 43.
1. 	Timeliness of Mr. Flynn’s Motion
The first factor looks to whether the movant has filed their motion to reopen
in a timely manner. There is no specific time period that governs when a Rule 60(b)(6)
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motion must be made, except that it must be filed within a “reasonable time.”6
United
States v. Boch Oldsmobile, Inc., 909 F.2d 657, 660 (1st Cir. 1990). “What constitutes
reasonable time, however, depends on the facts of each case.”
	Id. at 660-61 (citing
United States v. Berenguer, 821 F.2d 19, 21 (1st Cir. 1987);
United States v.
Holtzman, 762 F.2d 720, 725 (9th Cir. 1985)). For instance, the First Circuit has held
that a Rule 60(b)(6) motion to reopen filed thirty days after judgment is within the
“reasonable time” period.
	Id. at 660 (citing
Limerick v. Greenwald, 749 F.2d 97, 99
(1st Cir. 1984)). 	At the same time, the First Circuit has found a five-year delay in
filing to be within a “reasonable time.”
	See United States v. Baus, 834 F.2d 1114,
1122-23 (1st Cir. 1987).
With regard to timeliness, other “relevant considerations include, whether the
parties have been prejudiced by the delay and whether a good reason has been
presented for failing to take action sooner.”
	Boch, 909 F.2d at 661 (citing
In re Pac.
Far E. Lines Inc., 889 F.2d 242, 249 (9th Cir. 1989)).
In this case, more than two years have passed between the Court’s dismissal
of the 2023 Complaint and Mr. Flynn’s filing of the Motion to Reopen. 	During that
time, as described in his affidavit, Mr. Flynn has actively pursued his Section 33-18-
17 action. 	First, Mr. Flynn reached out to his attorney, Mr. Marion, about re-
engaging the litigation services of Mr. Rodio. Mr. Rodio confirmed this engagement
in writing. Mr. Flynn then attempted to communicate with Mr. Rodio multiple times
6 By contrast, motions brought under Rule 60(b)(1), (2), and (3) must be brought
within one year from the judgment.
	See Fed. R. Civ. P. 60(c)(1);
United States v.
Marin, 720 F.2d 229, 231 (1st Cir. 1983).
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about the claim but was left with no response. 	Mr. Flynn then sought a
second
attorney to litigate the claim. 	KSPR Law agreed to take on the matter but, in
accordance with Section 33-18-17’s requirements, Mr. Flynn had to first make a
statutory demand upon Ms. Testa—which he made. 	Left with no response to the
demand, Mr. Flynn filed a
second complaint with this Court, which Judge DuBose
dismissed as untimely filed. Finally, after all that, Mr. Flynn filed the present Motion
to Reopen.
Given these facts, there are good reasons to see why Mr. Flynn did not file this
motion sooner. It cannot fairly be said that Mr. Flynn has “sat on his hands” for the
past two years, as Ms. Testa suggests. 	ECF No. 23 at 7. 	Rather, he has acted
diligently and consistently in his efforts to pursue a claim on behalf of the Trust he is
charged with overseeing. As such, the Court finds that Mr. Flynn’s motion was filed
within a reasonable time.
2. 	Exceptional Circumstances
The 	second 	factor 	looks 	to 	whether 	the 	case 	presents 	“exceptional
circumstances” justifying the “extraordinary relief” sought. In assessing this factor,
the Court must look to, among other things, whether the movant “is faultless in the
delay” in seeking relief.
	Blanchard v. Cortes-Molina, 453 F.3d 40, 44 (1st Cir. 2006)
(quoting
Pioneer, 507 U.S. at 393). “If a party is ‘partly to blame,’ Rule 60(b)(6) relief
is not available to that party.”
	Id. (quoting
Claremont Flock Corp. v. Alm, 281 F.3d
297, 299 (1st Cir. 2002));
see also Cotto v. United States, 993 F.2d 274, 278 (1st Cir.
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1993) (“In our adversary system of justice, each litigant remains under an abiding
duty to take the legal steps necessary to protect his or her own interests.”).
Once again, the facts of this case present compelling reasons to find in Mr.
Flynn’s favor. First, Mr. Flynn raises serious allegations against Ms. Testa involving
the forgery of her mother’s signature on a banking application in order to obtain
ownership of a brokerage account. 	In cases involving similar facts, courts have
granted relief from judgment under Rule 60(b)(6).
	See, e.g.,
United States v.
Courageux, No. 13-80391-CIV, 2014 WL 197729, at *1-2 (S.D. Fla. Jan. 9, 2014)
(granting defendant’s motion to reopen under Rule 60(b)(6) due to concerns about
whether defendant’s signature on a student loan promissory note was forged);
Nat’l
Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 266-67 (4th Cir. 1993) (reversing lower
court’s denial of Rule 60(b)(6) motion brought by administratrix of decedent’s estate
in loan default action due in part to concerns about whether the decedent “sign[ed]
the loan documents or authorize[d] someone to sign on his behalf”).
Other courts have suggested that serious concerns of forgery can rise to the
level 	of 	“extraordinary 	circumstances” 	under 	Rule 	60(b)(6), 	but 	they 	have
nevertheless 	denied 	the 	motions 	to 	reopen 	due 	to 	inadequate 	evidence 	being
presented or mitigating facts in the record that lessen those concerns.
See, e.g.,
In re
Residential Capital, LLC, No. 15 Civ. 3248 (KPF), 2016 WL 796860, at *16 (S.D.N.Y.
Feb. 22, 2016) (denying motion to reopen due to “inadequate evidence of fraud or
forgery”);
Akins v. U.S. Bank, Nat’l Ass’n, No. 2:18-cv-02725-SHM-dkv, 2019 WL
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6878877, at *4 (W.D. Tenn. Dec. 17, 2019) (“Although [plaintiff’s] concerns about
forgery are colorable, mitigating facts in the record greatly lessen those concerns.”).
As will be explained later in this opinion, Mr. Flynn has made a strong case as
to the potential merits of his forgery claim. At this stage, the Court is persuaded that
he will present adequate evidence and that there are no mitigating facts in the record
that lessen the Court’s concerns over the alleged forgery in this case. 	Ms. Testa
suggests that, according to First Circuit precedent, “garden variety deceit and fraud
by a party” does not by itself rise to the level of a Rule 60(b)(6) claim. ECF No. 26 at
16; ECF No. 28 at 2, 5;
see Simon v. Navon, 116 F.3d 1, 5 (1st Cir. 1997).
However, the Court’s concern over allegations of forgery is not the only
consideration weighing in favor of finding “exceptional circumstances” in this case. A
second and perhaps more important consideration is that Mr. Flynn is not to blame
for the delay in bringing this Motion to Reopen.
	See Blanchard, 453 F.3d at 44. 	In
fact, he has made every effort to pursue the Section 33-18-17 claim, despite being
presented with a variety of challenges, including: (1) a wholly uncommunicative and
inattentive attorney, who Mr. Flynn had initially hired to litigate the claim but who
failed to attend to it; (2) a hard-to-reach beneficiary in Ms. Raduano, who has
experienced multiple periods of incarceration and homelessness in the past two years;
and (3) a trust on the verge of insolvency, which made it incredibly difficult to find
new counsel to take on this matter.
It also bears emphasizing that Mr. Flynn has undertaken these efforts, not for
his own benefit, but to protect the interests of the Trust and Ms. Raduano as its
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Beneficiary. 7 	Notwithstanding the difficulties encountered, Mr. Flynn continues to
faithfully 	discharge 	his 	fiduciary 	duties 	as 	Trustee—conduct 	that 	is 	not 	only
commendable but also exceptional. In light of these circumstances, the second factor
weighs in favor of Mr. Flynn.
3. 	Potential Merits of Mr. Flynn’s Claim
The third factor looks to the potential merits of the movant’s underlying claim.
“[A]s a precondition to relief under Rule 60(b), [a party] must give the trial court
reason to believe that vacating the judgment will not be an empty exercise.”
Bouret-
Echevarria, 784 F.3d at 46 (quoting
Teamsters, 953 F.2d at 20). Indeed, “motions for
relief under Rule 60(b) are not to be granted unless the movant can demonstrate a
meritorious claim or defense.”
	Id. (internal citations omitted) (quoting
Teamsters,
953 F.2d at 20). 	This is so because the rule recognizes not only the “importance of
finality” but also “the desirability of resolving disputes on the merits.”
	Farm Credit
Bank of Baltimore v. Ferrera-Goitia, 316 F.3d 62, 66 (1st Cir. 2003) (citing
Teamsters,
953 F.2d at 19).
7 In a supplemental briefing recently submitted to the Court, Ms. Testa
appears to suggest, for the first time, that “Mr. Flynn is prosecuting the instant case
for his own financial reasons.” ECF No. 28 at 6. It is of course hornbook law that a
trustee must put the interests of the trust and the beneficiary ahead of their own
personal interests.
	See generally Bogert,
The Law of Trusts and Trustees § 543 (2d
ed. 1960)). Under Rhode Island law, trustees are also bound by a fiduciary duty not
to abuse their discretion, and they must act reasonably within the limits of their
power.
See Viall v. R.I. Hosp. Trust Co., 123 A. 570, 571-72 (R.I. 1924). A court will
not substitute its judgment for that of the trustee unless it determines, under the
circumstances, that the trustee’s exercise of their discretion is unreasonable.
	Id. at
572. Here, the evidence before the Court shows that Mr. Flynn’s conduct as Trustee
has been beyond reproach, and there is no indication that, in representing the
interests of the Trust, he has acted unreasonably in the exercise of his discretion.
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This Court has yet to address the merits of Mr. Flynn’s Section 33-18-17 claim.8
The claim was not part of the 2023 Complaint, and in its 2023 Order, the Court
suggested that the claim could be pursued “in any court of competent jurisdiction,”
including this one. 	ECF No. 15 at 4 n.4. 	The Court also held that Mr. Flynn, as
Trustee, likely had standing to bring the Section 33-18-17 claim in the name of
Elaine’s Estate as a “legally interested person” attempting to recover property that
he “believe[s] should be recovered for the benefit of the estate.”
Id. at 3 (quoting R.I.
Gen. Laws § 33-18-17);
see also Henry v. Sheffield, 856 F. Supp. 2d 345, 350 (D.R.I.
2012).
i. 	Ms. Testa’s Futility Argument
As a preliminary matter, Ms. Testa argues that reaching the merits of Mr.
Flynn’s Section 33-18-17 claim would be an “empty exercise” because it is time-barred
by another state statute, R.I. Gen. Laws § 9-1-21. ECF No. 23 at 9-10. Section 9-1-
21 provides:
If any person, for or against whom any causes of action enumerated in
this chapter accrue, dies before the time limited for bringing action, or
within sixty (60) days after the expiration of that time, and the cause of
action survives, the action may be commenced by or against the executor
or administrator of the deceased person, as the case may be, at any time
not more than one year after the appointment of the executor or
administrator of the person so dying, and not afterwards, if barred by
the provisions of this chapter; provided, however, that any such action
shall be brought within three (3) years after the death of the person and
not after.
8 While Mr. Flynn included the Section 33-18-17 claim in his 2025 Complaint,
Judge DuBose dismissed that complaint without reaching the merits.
Flynn, slip op.
at 2-5.
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R.I. Gen. Laws § 9-1-21. Ms. Testa claims that, because she was appointed Executrix
of Elaine’s Estate on July 21, 2020, any suit filed against her in the name of the Estate
should have been brought within one year of that appointment, that is, July 21, 2021.
ECF No. 23 at 10. As a reminder, Mr. Flynn filed the 2023 Complaint—which he now
seeks to amend—on March 10, 2023.
See ECF No. 1.
Thus, before reaching the potential merits of Mr. Flynn’s claim, the Court must
first address Ms. Testa’s futility argument. 	Fortunately, the Rhode Island courts
have provided robust analysis on this issue.
	See, e.g.,
Prior v. Roger Williams Gen.
Hosp., No. 75-2778, 1976 WL 177108 (R.I. Super. Ct. Apr. 13, 1976). 	As the
Prior
court observed, the Rhode Island Supreme Court has made clear that Section 9-1-21
“applies only in those actions which accrue before the death of the decedent or within
sixty (60) days thereafter
but which may become barred by the general statute of
limitations within one year from the death of the decedent.”
	Id. at 1 (emphasis in
original) (citing
MacNeill v. Gallagher, 53 A. 630 (R.I. 1902);
Borges v. Cory, 82 A.2d
833 (R.I. 1951)). 	“If the action would not be barred by the general statute of
limitations within one year from the death of the decedent, the statute does not
apply.”
	Id. Section 9-1-21 “is a special statute which
enlarges the time for bringing
suit whenever the limitations period provided for in the general statute has run out
during the one-year period following the death of the person for whom the cause of
action has accrued.”
	Id. (emphasis in original). 	“It is not meant to cut down the
general statute of limitations period for actions which have survived the decedent.”
Id.
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After
Prior was decided, the Rhode Island General Assembly amended Section
9-1-21 in 1984. 9 R.I. Gen. Laws 1956 § 9-1-21,
amended by, Pub. L. 1984, ch. 410, §
1. However, as this Court recognized in 2013, “the first portion of the statute remains
essentially the same, except that the triggering event for the running of the one-year
limitations period was changed from the death of the decedent to the appointment of
the executor or administrator.”
	TD Bank, N.A. v. Cambio, No. 12-647 S, 2013 WL
4679210, at *5 (D.R.I. Aug. 29, 2013),
adopting report and recommendation, No. 12-
647 S (Mar. 26, 2013). As such, “the pre-1984 Rhode Island State cases interpreting
the statute’s reach are still good law.”
Id.
Applying the caselaw to the facts of this case helps the Court to discern
whether or not Section 9-1-21 bars Mr. Flynn’s claim. We begin with the first part of
the statute, which asks whether the decedent died “before the time limited for
bringing action, or within sixty (60) days after the expiration of [that] time.” R.I. Gen.
Laws § 9-1-21. 	Here, the fraud giving rise to this cause of action is alleged to have
occurred—and thus, accrued—on September 29, 2017. ECF No. 18 at 3. Generally,
the statute of limitations for bringing a fraud claim in Rhode Island is ten years.
See
R.I. Gen. Laws § 9-1-13(a) (“Except as otherwise specially provided, all civil actions
shall be commenced within ten (10) years next after the cause of action shall accrue,
and not after.”);
see also Behroozi v. Kirshenbaum, 128 A.3d 869, 873 (R.I. 2016)
(recognizing Rhode Island’s “ten-year statute of limitations for fraud”). 	Before she
9 The Rhode Island General Assembly also amended Section 9-1-21 in 1997.
See R.I. Gen. Laws 1956 § 9-1-21,
amended by, Pub. L. 1997, ch. 326, § 14. However,
for the purposes of this case, that amendment does not change the Court’s analysis.
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died in 2020, Elaine was free to bring a fraud claim in her own right because she was
well within the ten-year statute of limitations at that point. Accordingly, at the time
of her death, Elaine was not limited in bringing her fraud action.
The next part of the statute asks whether, even after the decedent’s death,
“the cause of action survives.” 	R.I. Gen. Laws § 9-1-21. 	Under Rhode Island law,
fraud 	claims 	survive 	the 	death 	of 	the 	individual 	upon 	whom 	the 	fraud 	was
perpetrated.10
	See R.I. Gen. Laws § 9-1-6(3) (providing that “[c]auses of action and
actions for damages to … personal estate” survive the death of the plaintiff);
see also
Chu v. Legion of Christ, Inc., 2 F. Supp. 3d 160, 171-72 (D.R.I. 2014) (recognizing
that, under Rhode Island law, it is well settled that fraud claims survive the plaintiff’s
death).
Ms. Testa reads the following statutory provision quite narrowly: “the action
may be commenced … against the executor … of the deceased person, as the case may
be, at any time not more than one year after the appointment of the executor … of
the person so dying, and not afterwards.” R.I. Gen. Laws § 9-1-21. She argues that
this provision forecloses Mr. Flynn’s action against her, which was filed more than
one year after her appointment as Executrix. 	ECF No. 23 at 10. 	Read in isolation,
Ms. Testa may have a point.
However, the Court cannot ignore an important qualifier that immediately
follows that section: “if barred by the provisions of this chapter.” R.I. Gen. Laws § 9-
10 By contrast, defamation claims, for example, do not survive the death of the
person who is defamed.
	See Nissensohn v. CharterCARE Home Health Servs., 306
A.3d 1026, 1035 (R.I. 2024) (citing
Young v. Aylesworth, 86 A. 555, 556-57 (R.I. 1913)).
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1-21. 	“[T]his chapter” refers to Title 9, Chapter 9-1 of the General Laws of Rhode
Island, which concerns “Causes of Action.” As the court explained in
Prior, this clause
cannot be disregarded: it indeed helps clarify that Section 9-1-21 “applies only to
those actions brought within one year of the death of the decedent which are ‘barred
by the [limitation] provisions of this chapter.’” 1976 WL 177108, at *1. “Actions not
so barred
are not affected by this section.”
Id. (emphasis added).
As relevant here, the already mentioned ten-year statute of limitations does
not bar this fraud action. 	Because the fraud is alleged to have occurred in 2017,
absent her death in 2020, Elaine would have had until September 29, 2027 to bring
a fraud claim. ECF No. 26 at 5-6. Otherwise, there is no alternative provision within
Chapter 9-1 that precludes this fraud action. It therefore stands to reason that Mr.
Flynn’s claim is not affected by Section 9-1-21, meaning his claim is not futile.
ii. 	Whether Mr. Flynn’s Claim Is “Potentially Meritorious”
The Court now turns to the potential merits of Mr. Flynn’s fraud claim.
	See
Bouret-Echevarria, 784 F.3d at 46. 	On the record before it, Mr. Flynn appears to
cross this threshold. 	In his affidavit, Mr. Flynn states with particularity the
circumstances surrounding the underlying fraud claim, namely that Ms. Testa
allegedly forged her mother’s signature to obtain her right of survivorship over the
Fidelity Account. 	ECF No. 18-1 at 30-32. 	He also claims to possess evidence to
support 	his 	allegations 	of 	fraud, 	including 	a 	copy 	of 	a 	“Brokerage 	Account
Application” from Fidelity and “dozens of documents containing genuine signatures
made by Elaine, many of which are notarized, and some of which were also witnessed
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and signed by [Mr. Flynn] and are dated around the same time the Fidelity Account
was opened.”
Id. at 30. Accordingly, the third factor also weighs in Mr. Flynn’s favor.
4. 	Likelihood of Unfair Prejudice to Ms. Testa
The fourth and final factor looks to any prejudice against Ms. Testa that would
result 	from 	the 	Court 	granting 	Mr. 	Flynn’s 	Motion 	to 	Reopen. 	Important
considerations include whether “witnesses have died, memories have dimmed beyond
refreshment, some discovery scheme has been thwarted or evidence has been lost.”
United States v. Singer, 2024 WL 1702128, at *16 (D. Mass. Apr. 19, 2024) (cleaned
up) (citing
Coon v. Grenier, 867 F.2d 73, 77 (1st Cir. 1989)).
Here, any prejudice against Ms. Testa is minimal. To be sure, before she died,
Elaine was arguably the best person to testify as to the alleged fraud in this case.
However, this point does not change the Court’s analysis one way or the other because
Elaine had already passed when this lawsuit was first filed in 2023. 	To the extent
Ms. Testa argues that memories may have faded or evidence may have been lost, the
Court is unpersuaded. 	The same point can be made about any case, and there is
nothing in the record to show that any evidence that would be presented at trial has
become unavailable.
Accordingly, because Ms. Testa has not shown that she will be prejudiced by
the decision to reopen this case, this factor also weighs in Mr. Flynn’s favor.
5. 	Summary of Analysis
Having determined that each of the Rule 60(b)(6) factors weigh in Mr. Flynn’s
favor,
see Bouret-Echevarria, 784 F.3d at 43, the Court GRANTS the Motion to
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Reopen (ECF No. 18) and sets aside its prior order, dismissing this case without
prejudice (ECF No. 15). 	The Court will now proceed to the other pending motion
before it, which is Mr. Flynn’s Motion to Amend the 2023 Complaint (ECF No. 19).
III. 	MOTION TO AMEND
A. 	Legal Standard
The Supreme Court has explained that a Rule 60(b) motion and a Rule 15(a)
motion “demand separate inquiries.”
BLOM Bank SAL v. Honickman, 605 U.S. 204,
213 (2025). A court must first address the Motion to Reopen
before it can address the
Motion to Amend.
	Id. (“[S]atisfaction of Rule 60(b)(6) necessarily precedes any
application of Rule 15(a).”). 	Once the judgment relating to the Motion to Reopen is
set aside, then the court may proceed with its Rule 15(a) analysis.
Id. (citing
Boyd v.
Sec’y, Dep’t of Corr., 114 F.4th 1232, 1237 (11th Cir. 2024)).
Where a plaintiff seeks leave to amend their complaint, Rule 15(a)(2) of the
Federal Rules of Civil Procedure governs.
	See Fed. R. Civ. P. 15(a)(2). 	There is
generally a liberal policy in favor of granting a party leave to amend.
Foman v. Davis,
371 U.S. 178, 182 (1962) (“Rule 15(a) declares that leave to amend ‘shall be freely
given when justice so requires’; this mandate is to be heeded.”);
In re Genzyme Corp.
Sec. Litig., 754 F.3d 31, 46 (1st Cir. 2014) (“A Rule 15(a) motion to amend pleadings
is ordinarily granted freely.”). “That rule notwithstanding, ‘[a] court may deny leave
to amend for a variety of reasons, including futility, bad faith, undue delay, or a
dilatory motive on the movant’s part.’”
	Am. Bd. of Internal Med. v. Salas Rushford,
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114 F.4th 42, 66 (1st Cir. 2024) (internal quotations omitted) (quoting
Privitera v.
Curran (In re Curran), 855 F.3d 19, 27-28 (1st Cir. 2017)).
Relatedly, Rule 15(c) permits the “relation back” of an amendment to an earlier
filed complaint when “the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—in the
original pleading.” 	Fed. R. Civ. P. 15(c)(1)(B). 	In other words, “when an amended
pleading ‘relates back’ to the date of a timely filed original pleading [it] is thus itself
timely even though it was filed outside an applicable statute of limitations.”
Krupski
v. Costa Crociere S.p.A., 560 U.S. 538, 541 (2010).
B. 	Analysis
Mr. Flynn seeks leave to amend the 2023 Complaint and relate back his
proposed amended complaint to the original filing so that he can pursue the statutory
remedy provided under R.I. Gen. Laws § 33-18-17. 	ECF No. 19 at 2. 	Ms. Testa
objects, arguing that the motion would be futile, that Mr. Flynn’s lengthy delay in
bringing this motion was undue, and that granting the motion would result in
prejudice to her. ECF No. 24 at 8-12.
The Court has already analyzed each of these arguments in ruling on Mr.
Flynn’s Motion to Reopen. 	To summarize: (1) the Motion to Amend is not futile
because Mr. Flynn’s fraud claim is not affected by Section 9-1-21; (2) the filing of this
motion was not attributed to undue delay because Mr. Flynn has acted diligently and
consistently in his efforts to pursue this claim over the past two years; and (3) Ms.
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Flynn has not shown that she will be prejudiced because there is nothing in the record
to show that any evidence that would be presented at trial has become unavailable.
To the extent that Ms. Testa argues that the forgery claim is being asserted
against her for the first time in Mr. Flynn’s proposed amended complaint, the Court
disagrees. 	Since this lawsuit was first filed in 2023, Mr. Flynn has consistently
maintained that Ms. Testa’s right of survivorship over the Fidelity Account was
obtained through forgery. 	The Court need look no further than the allegations of
forgery contained in the 2023 Complaint itself:
18. Upon information and belief, in an effort to deny her sister Michelle
the funds in the investment account, Mar-cia
forged her mother’s
signature on the Fidelity Account opening documents, and checked
the box indicating the Fidelity Account would be a joint account with
rights of survivorship.
* * *
23. Upon information and belief, and as made clear in her estate
planning documents, Elaine was wholly unaware that Mar-cia had
opened the Fidelity account by
forging her mother’s name on the
Fidelity documents, and was wholly unaware that Mar-cia had
designated 	the 	Fidelity 	Account 	as 	offering 	Mar-cia 	“rights 	of
survivorship.”
ECF No. 1 at 3 (emphasis added).
The 	Court 	therefore 	GRANTS 	Mr. 	Flynn’s 	Motion 	to 	Amend 	the 	2023
Complaint. 	ECF No. 19. 	Because Mr. Flynn’s proposed Amended Complaint
unquestionably arises out of the same conduct, transaction, or occurrence set out in
the original complaint, 	the Amended Complaint shall also relate back to the 2023
Complaint.
Id.
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IV. 	CONCLUSION
For the reasons stated, the Court GRANTS Mr. Flynn’s Motion to Reopen.
ECF No. 18. 	The Court also GRANTS Mr. Flynn’s Motion to Amend his 2023
Complaint. ECF No. 19.
IT IS SO ORDERED.
s/John J. McConnell, Jr.
_________________________________
John J. McConnell, Jr.
Chief Judge
United States District Judge
February 27, 2026
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