Wittgenfeld et al v. Lockett et al

Filing 68

ORDER re 67 Suggestion of filed by Robert Lockett. This case is stayed for a period of NINETY (90) DAYS from the date of this Order. Upon expiration of this deadline, and without further notice, the case will be deemed voluntarily dismissed without prejudice, and the case closed. The Clerk is directed to add a stay flag to the docket. Plaintiffs' Motion for Service by Mail (Doc. 46), Motions to Compel (Doc. 49 , Doc. 51 ), and Motion for Leave to File Third Amended Complaint ( Doc. 63) are DENIED WITHOUT PREJUDICE. Plaintiff Bernath's Motion to Continue Trial Dates (Doc. 65 ) is DENIED AS MOOT. The Clerk shall send a copy of this Order to Martha M. Wong, as the surviving spouse of Daniel A. Bernath, at 1319 Kingswoo d Court, Fort Myers, Florida, 33919. The Clerk is further directed to update the docket to terminate the last known address for Daniel A. Bernath of Chesapeake Correctional Center without sending a copy of this Order to that address, and update the address to 1319 Kingswood Court, Fort Myers, Florida, 33919.Signed by Judge Sheri Polster Chappell on 1/31/2018. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DALLAS WITTGENFELD and DANIEL
A. BERNATH,
Plaintiffs,
v.

Case No: 2:17-cv-202-FtM-99MRM

ROBERT LOCKETT, DIANE
SHIPLEY, DON SHIPLEY and
EXTREME SEAL ADVENTURES,
Defendants.
/
ORDER1
This matter comes before the Court on Defendant’s Suggestion of Death (Doc. 67)
filed on January 29, 2018. Defense counsel reports that Plaintiff Daniel A. Bernath
passed away on January 22, 2018. The Service List includes Bernath’s surviving spouse,
Martha M. Wong.
Under Federal Rule of Civil Procedure 25, “[i]f a party dies and the claim is not
extinguished, the court may order substitution of the proper party.

A motion for

substitution may be made by any party or by the decedent’s successor or representative.
If the motion is not made within 90 days after service of a statement noting the death, the
action by or against the decedent must be dismissed.” Fed. R. Civ. P. 25(a)(1). Thus,
the Court will stay this case for a period of 90 days to provide Ms. Wong, the surviving
spouse, an opportunity to notify the Court if she or a personal representative anticipate
continuing with litigation. Given the inactivity in this case, the Court will also direct Plaintiff

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Dallas Wittgenfeld to inform the Court within 90 days whether he intends to continue with
this case. Failure to respond will result in this matter being dismissed for failure to
prosecute.
Given the delays in this case, the Court also notes that many of the deadlines in
the Case Management and Scheduling Order (Doc. 41) are now infeasible. Mr. Bernath
previously filed a request to continue the dates due to his incarceration. (Doc. 65). The
Court will deny this Motion as moot, but is aware that the schedule needs to be amended
if the case moves forward. Also, given the stay and the uncertainty surrounding the
prosecution of this case, the Court will deny all other pending motions without prejudice
to be refiled by Plaintiff(s) if they wish to prosecute this case and move forward with the
issues raised in the motions.
Accordingly, it is now
ORDERED:
(1)

This case is stayed for a period of NINETY (90) DAYS from the date of this

Order. Upon expiration of this deadline, and without further notice, the case will be
deemed voluntarily dismissed without prejudice, and the case closed. The Clerk is
directed to add a stay flag to the docket.
(2)

Plaintiffs’ Motion for Service by Mail (Doc. 46), Motions to Compel (Doc. 49,

Doc. 51), and Motion for Leave to File Third Amended Complaint (Doc. 63) are DENIED
WITHOUT PREJUDICE.
(3)

Plaintiff Bernath’s Motion to Continue Trial Dates (Doc. 65) is DENIED AS

MOOT.

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(4)

The Clerk shall send a copy of this Order to Martha M. Wong, as the

surviving spouse of Daniel A. Bernath, at 1319 Kingswood Court, Fort Myers, Florida,
33919.
(5)

The Clerk is further directed to update the docket to terminate the last

known address for Daniel A. Bernath of Chesapeake Correctional Center without sending
a copy of this Order to that address, and update the address to 1319 Kingswood Court,
Fort Myers, Florida, 33919.
DONE and ORDERED in Fort Myers, Florida this 31st day of January, 2018.

Copies:
Martha M. Wong
All Parties of Record

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