Baltimore et al v. Goodwin et al

Filing 54

ORDER: In order to give Plaintiffs putative successor an opportunity to enroll and oppose the pending Motion, Defendants are ORDERED to effect proper service as provided in Rule 4 within twenty-eight (28) days from the date of this Order. Signed by Magistrate Judge Karen L Hayes on 09/23/2014. (crt,Williams, L)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
ROBERT BALTIMORE

CIVIL ACTION NO. 13-1108
Section P

VERSUS

JUDGE ELIZABETH E. FOOTE

WARDEN JERRY W. GOODWIN, ET.
AL.

MAGISTRATE JUDGE HAYES

ORDER
On August 12, 2014, Defendants filed a “Notice of Suggestion of Death” and stated that
Plaintiff Robert Baltimore passed away on July 14, 2014. [doc. # 47]. They certified that they
mailed a copy of the Notice to Plaintiff’s next-of-kin and emergency contact, Delores Williams.
Id. Citing Federal Rule of Civil Procedure 25, they ask the Court to dismiss the instant
proceedings if Plaintiff’s successor or representative fails to file a motion for substitution within
ninety days.
Rule 25(a) provides the following:
(1) Substitution if the Claim Is Not Extinguished. If 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.
***
(3) Service. A motion to substitute, together with a notice of hearing, must be served
on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A
statement noting death must be served in the same manner. Service may be made in
any judicial district.
FED . R. CIV . P. 25(a).
Here, Defendants have not triggered the 90-day period for filing a motion for substitution

because they did not serve Plaintiff’s putative successor, a non-party, in accordance with Rule 4.
See Advisory Committee’s Note on 1963 Amendment to FED . R. CIV . P. 25 (“The amended rule
establishes a time limit for the motion to substitute based not upon the time of the death, but
rather upon the time information of the death is provided by means of a suggestion of death upon
the record, i.e. service of a statement of the fact of the death.”). Thus, as Plaintiff is deceased and
Defendants have failed to properly notify Plaintiff’s successor, the Court is unable to rule on the
pending Motion to Dismiss/Motion for Summary Judgment. In order to give Plaintiff’s putative
successor an opportunity to enroll and oppose the pending Motion, Defendants are ORDERED
to effect proper service as provided in Rule 4 within twenty-eight (28) days from the date of this
Order.
In Chambers, Monroe, Louisiana, this 23rd day of September, 2014.

__________________________________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE )

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