Feijoo v. Spencer et al

Filing 24

Judge Indira Talwani: ORDER entered. If a timely motion for substitution is not filed with the Court, this action may be dismissed pursuant to Rule 25 of the Federal Rules of Civil Procedure. The Clerk shall send a copy of this Order to Maria Feijo o, 36 Red Cedar Road, Mashpee, MA 02649. Except as to the motion for substitution, the case is hereby stayed pending further order of the court. The clerk mailed a copy of this order to Maria Feijoo, 36 Red Cedar Road, Mashpee, MA 02649.(PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

HUMBERTO FEIJOO,
Plaintiff,
v.
LUIS SPENCER, et al.,
Defendants.

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Civil Action No.
14-12833-IT

ORDER
TALWANI, D.J.
Plaintiff Humberto Feijoo, proceeding pro se, filed this civil rights action under 42
U.S.C. § 1983 against Commissioner Spencer and others. See Docket No. 1. Defendants have
not yet answered the complaint. On January 20, 2015, Plaintiff filed a motion to amend the
complaint. See Docket No. 22.
Defendants have now filed a Suggestion of Death notifying the court that Mr. Feijoo
died on February 23, 2015. See Docket No. 23. The certificate of service accompanying the
Suggestion of Death of Plaintiff Humberto Feijoo states that on March 2, 2015, a copy was
served on his next of kin listed as Maria Feijoo, 36 Red Cedar Road, Mashpee, MA 02649. Id.
Mr. Feijoo’s death affects the viability of this lawsuit. Pursuant to Federal Rule of Civil
Procedure 25(a), “[i]f a party dies and the claim is not extinguished, the court may order
substitution of the proper party.” If a motion for substitution of the party is not made within 90
days after service of a statement noting the death, “the action by ... the decedent must be
dismissed.” Fed. R. Civ. P. 25(a)(1). This 90 day time period does not begin to run until the
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decedent's representative or successor is properly served with the statement noting the death
thereby identifying and notifying the substitutable party. In re C.R. Stone Concrete Contractors,
Inc., 462 B.R. 6, 18 (Bankr. D. Mass. 2011).
Accordingly, if a timely motion for substitution is not filed with the Court, this action
may be dismissed pursuant to Rule 25 of the Federal Rules of Civil Procedure. The Clerk shall
send a copy of this Order to Maria Feijoo, 36 Red Cedar Road, Mashpee, MA 02649.
Except as to the motion for substitution, the case is hereby stayed pending further order
of the court.
So ordered.
/s/ Indira Talwani
United States District Judge
Dated: March 17, 2015

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