Burnett v. Michigan Department of Corrections et al

Filing 102

ORDER Directing Personal Representative of Plaintiff's Estate to Move for Substitution of Party. **See order for deadline** Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EVERETT BURNETT,
Plaintiff,
v.

Case Number 08-11764
Honorable David M. Lawson
Magistrate Judge Mark A. Randon

MICHIGAN DEPARTMENT OF CORRECTIONS,
PATRICIA CARUSO, Director of MDOC,
SUSAN DAVIS, Warden, ROY RYDER,
Deputy Warden, JOSHUA ZUSSMAN, Officer,
DONACIANO MARTINEZ, Officer, LYNN
SIDUN, Officer, and STEVEN TROSZAK, Officer,
Defendants.
____________________________________________/
ORDER DIRECTING PERSONAL REPRESENTATIVE OF PLAINTIFF’S ESTATE
TO MOVE FOR SUBSTITUTION OF PARTY
On February 13, 2012, defendant Sidun filed a statement of death, indicating that plaintiff
Everett Burnett had passed away. Federal Rule of Civil Procedure 25 allows the court to substitute
“the proper party” where death of a party does not extinguish the claim. Fed. R. Civ. P. 25(a)(1).
A section 1983 claim is not extinguished by death. See Robertson v. Wegmann, 436 U.S. 584, 588
(1978); Mich. Comp. Laws § 600.2921. The capacity of an individual to sue is “determined by the
law of the individual’s domicile.” Fed. R. Civ. P. 17(b). In Michigan, a claim for damages resulting
from injury survives the death of the injured person. See Mich. Comp. Laws. § 600.2921. Such
claims may only be brought “by, and in the name of, the personal representative of the estate of the
deceased person.” Mich. Comp. Laws § 600.2922(2).
“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 statement

noting the death, the action by or against the decedent must be dismissed.” Fed. R. Civ. P. 25(a)(1).
Therefore, the Court will require the personal representative of the plaintiff’s estate to move for
substitution within ninety days.
Accordingly, it is ORDERED that the personal representative of the plaintiff’s estate must
move for substitution on or before May 17, 2012 or the case will be dismissed.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: February 17, 2012

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on February 17, 2012.
s/Deborah R. Tofil
DEBORAH R. TOFIL

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