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)

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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 -2-

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