Tomberlin v. Multibank 2009-1 CML-ADC Venture, LLC

Filing 6

ORDER TO SHOW CAUSE by the parties, if any there be, as to (1) why the 2 motion to substitute should not be granted, and (2) whether and why the court should hold a hearing before deciding the motion; Show Cause Response due by 1/30/2018. Signed by Honorable Judge Myron H. Thompson on 1/16/2018.(alm, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
IN RE:

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JOHN C. TOMBERLIN AND JAN
M. TOMBERLIN,
Debtors.
JOHN C. TOMBERLIN,
Appellant,
v.
MULTIBANK 2009-1 CML-ADC
VENTURE, LLC,
Appellee.

CIVIL ACTION NO.
2:17cv872-MHT
(WO)

ORDER
This

matter

Multibank

2009-1

is

before

CML-ADC

the

court

Venture,

LLC’s

on

appellee
motion

to

substitute NCP Bayou 2, LLC, as appellee, pursuant to
Federal
requests

Rule
that

of
the

Civil
court

Procedure
schedule

25(c).
a

Multibank

hearing

on

the

motion so that it can serve of notice of the hearing,

which it asserts is required by Rule 25(c).*
requires

service

compliance

with

of

a

Rule

motion

25(a)(3);

to

Rule 25(c)

substitute

Rule

25(a)(3)

in

states

that, “A motion to substitute, together with a notice
of hearing, must be served on the parties as provided
in Rule 5.”
While

the

wording

of

Rule

25(a)(3)

is

somewhat

confusing, it appears that the court need not hold a
hearing before granting a motion to substitute under
Rule

25

unless

necessary.

specific

reasons

make

a

hearing

See 7C Fed. Prac. & Proc. Civ. § 1958 (3d

ed.) (“The court also may decide the motion without an
evidentiary

hearing

necessary.”);

if

Sullivan

it

v.

determines

Running

it

Waters

is

not

Irrigation,

Inc., 739 F.3d 354, 359-360 (7th Cir. 2014) (holding
that

district’s

granting

a

failure

motion

to

to

hold

substitute

a
was

hearing
not

in

before
error

* Multibank has already served the appellant with a
copy of the motion to substitute by electronic means.
See Fed. R. Civ. P. 5(2)(E) (allowing service by
electronic means).
2

because, inter alia, a need for hearing had not been
shown).
* * *
Accordingly, it is ORDERED that the parties show
cause, if any there be, in writing by January 30, 2018,
as to (1) why the motion to substitute should not be
granted, and (2) whether and why the court should hold
a hearing before deciding the motion.
DONE, this the 16th day of January, 2018.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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