Love v. Bendily

Filing 90

RULING: IT IS ORDERED that the above-captioned proceeding shall be dismissed, with prejudice, pursuant to Fed.R.Civ.P. 25 (a). Judgment shall be entered accordingly. Signed by Judge John W. deGravelles on 10/1/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

LEWIS E . LOVE (#457127 )

CIVIL ACTION

VERSUS
JODY BENDILY , ET AL .

NO . 08-506 - JWD-SCR

RULING

In

January,

2015,

the

plaintiff's

sister,

Theresa

Love,

contacted the Court and advised the Court that the plaintiff had
passed away.

The Court conducted a telephone conference on January

8, 2015, and advised the plaintiff ' s sister that the Court would
add her to the Court's Docket Sheet as an interested party and that
the

Court would allow her

sixty

( 60)

days

to

consult with an

attorney and advise the Court whether she and the other surviving
siblings

of

the deceased plaintiff "intend to proceed in this

matter."

R. Doc. 81 .

A second telephone conference was conducted

on March 20, 2015, and the Court granted Theresa Love an extension
of 30 days within which to make that determination.

R. Doc. 84.

When no further information was forthcoming and when Theresa
Love thereafter failed to participate in a telephone conference
scheduled for June 3, 2015

(despite repeated attempts to contact

her), R. Doc. 86, the defendants filed a formal Suggestion of Death
into

the

record

Fed.R.Civ.P.

on

June

R. Doc . 88.

8,

2015,

pursuant

to

Rule

25(a),

In addition , the Court entered an Order

on

June

9,

2 015,

advising all

interested parties

that

" [ i] f

a

Motion for Substitution is not filed in 90 days, the action will be
dismissed pursuant to Rule 25(a) ."

R. Doc. 89.

Rule 25(a), Fed.R.Civ.P. , provides that, upon the death of a party,
a motion for substitution may be made by any party or by the decedent's
successor or representative.

However ,

" [ i] f

the motion is not made

within 90 days after service of a sta tement noting the death, the action
by or against the decedent must be dismissed."
official Comments to Rule 25,

Id.

As noted in the

in the absence of an extension of

time granted pursuant to Fed . R. Ci v. P. 6 (b) ( 1) , not here applicable,
a motion to substitute "may not be made later than 90 days after
the service of the statement [noting the death]."
In the instant case, the Court has provided ample opportunity
to the surviving sibling of the deceased plaintiff, Theresa Love,
to consult with an attorney, to notify the other surviving siblings
of

the

pendency

of

substitution herein.
the

defendants

this

proceeding ,

and

to

file

a

motion

for

When no motion to substitute was forthcoming,

complied

with

Fed . R. Civ.P.

25(a)

by

filing

a

Suggestion of Death into the record, and the Court further provided
notice that this action would be dismissed within 90 days if no
motion to substitute was thereafter filed.

A review of the record

reflects that no motion to substitute a proper party-plaintiff has
been filed within the time allowed .

Accordingly,

IT IS ORDERED that the above-captioned proceeding shall be

dismissed,

with

prejudice,

pursuant

Judgment shall be entered accordingly,
Baton Rouge, Louisiana, this

to

Fed.R.Civ.P.
L 7 ,
q-t..,VD lrl'

sr

J~

25 (a).

day of

~pteffihbr ,

STATES DISTRICT JUDGE

2015.