Laster v. Thompson et al

Filing 93

ORDER DISMISSING CASE. Pursuant to the attached Memorandum and Order, this action is DISMISSED without prejudice. The Clerk is DIRECTED to enter judgment accordingly and close the case. Signed by Judge David W. Dugan on 3/5/2025. (dmw2)

Case 3:20-cv-00341-DWD

Document 93

Filed 03/05/25

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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Plaintiff,
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vs.
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PERCY MYERS and WEXFORD )
HEALTH SOURCES, INC.,
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Defendants.
BYRON LASTER,

Case No. 20-cv-341-DWD

MEMORANDUM & ORDER
DUGAN, District Judge:
On November 20, 2024, Plaintiff’s Counsel filed a suggestion of death on the record
informing the Court that Plaintiff Byron Laster is deceased. (Doc. 88). Accordingly,
pursuant to Federal Rule of Civil Procedure 25(a), the Court ordered Plaintiff’s Counsel
to attempt to identify and effectuate personal service upon Mr. Laster’s next of kin. (Doc.
89). On December 23, 2024, Plaintiff’s Counsel filed a notice with the Court indicating
that Plaintiff’s Counsel identified and served one of Plaintiff’s daughters, Tiffany
Zollicofer, on November 27, 2024. Plaintiff’s Counsel further indicated, after conducting
an investigation and taking all reasonable steps, Plaintiff’s Counsel obtained the names
of Plaintiff’s other children. Plaintiff’s Counsel, however, was only able to obtain contact
information with one of those children – a minor. Although Plaintiff’s Counsel spoke
with the minor and her mother (and sent them a letter), all attempts to serve the Plaintiff’s
minor child were unsuccessful. Plaintiff’s Counsel further indicated that the minor child
and her mother appear to lack a fixed residence.

Case 3:20-cv-00341-DWD

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Filed 03/05/25

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On March 5, 2025, the Court held a status conference. During the status conference,
Plaintiff’s Counsel confirmed that they have not been able to obtain any further
information that would assist in locating Plaintiff’s next of kin and have had no further
contact with Plaintiff’s next of kin. Thus, despite diligent efforts, the only next of kin
Counsel has been able to locate and serve is Tiffany Zollicofer.
Federal Rule of Civil Procedure 25(a)(1) contemplates that once a suggestion of
death has been filed on the record in a case and served on all proper parties and
nonparties, a ninety-day time period for filing a motion for substitution begins. If no such
motion is filed, the case must be dismissed. Id.
Despite Plaintiff’s Counsel’s good faith efforts, Counsel has been unable to locate
and serve all of Plaintiff’s children. Absent any controlling authority to the contrary, the
Court finds that Counsel’s service efforts were sufficient to discharge Counsel’s
responsibilities under the Federal Rules of Civil Procedure as to these individuals. The
Court further finds that a suggestion of death has been properly filed and served on all
parties and locatable nonparties.
More than ninety days have elapsed since Ms. Zollicofer, the only locatable
nonparty, was served with the suggestion of death and other pertinent documents, and
she has not filed a motion for substitution. Accordingly, Rule 25(a)(1) requires that this
case be dismissed.

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Case 3:20-cv-00341-DWD

Document 93

Filed 03/05/25

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In light of the foregoing, this action is DISMISSED without prejudice. The Court
DIRECTS the Clerk to close the case.
The Court further finds that attorneys William J. Curtis and Deionna E. Ferguson,
who were appointed to represent Plaintiff, have fulfilled the purpose of their
appointment. Therefore, they are hereby terminated as Plaintiff’s counsel of record. The
Court thanks Counsel for their excellent service in this case.
Counsel is advised that Reimbursement of pro bono counsel for out-of-pocket
expenses up to $5,000 may be requested in accord with § 2.6 of the District Court’s Plan
for the Administration of the District Court Fund. Any motion for reimbursement must
be made within 30 days of entry of this Order.
SO ORDERED.
/s David W. Dugan
______________________________
DAVID W. DUGAN
United States District Judge

Dated: March 5, 2025

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