Walker et al v. Detroit Public School District et al

Filing 42

ORDER GRANTING IN PART 33 Renewed MOTION for Default Judgment as to Devon Bell, Derryck Brantley, William Morton filed by Kenota Slater, Liz McCants, Bridget Walker, Carol Merriweather, GRANTING 39 MOTION to Substitute Party filed by Kenota Slate r, Liz McCants, Carol Merriweather and DIRECTING the Clerk of Court to Amend the Docket and Setting Second Hearing as to 33 Renewed MOTION for Default Judgment as to Devon Bell, Derryck Brantley, William Morton, ( Motion Hearing set for 8/23/2011 10:00 AM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BRIDGET WALKER, et al.,
Plaintiffs,
v.

Case No. 10-12596

CARMEN EVANS, et al.,
Defendants.
/
ORDER (1) GRANTING PLAINTIFFS’ MOTION FOR SUBSTITUTION OF PARTY
PLAINTIFFS, (2) DIRECTING THE CLERK OF THE COURT TO AMEND THE
DOCKET, (3) GRANTING IN PART PLAINTIFFS’ MOTION FOR DEFAULT
JUDGMENT, AND (4) SETTING DATE FOR SECOND HEARING ON MOTION FOR
DEFAULT JUDGMENT
Before the court is Plaintiffs’ motion for substitution of party Plaintiffs, filed on
August 9, 2011, and Plaintiffs’ motion for default judgment, filed on July 8, 2011. The
court held a hearing on the motion for default judgment on August 10, 2011. The court
will grant the motion for substitution, and will grant in part the motion for default
judgment.
As three of the four real parties in interest to the suit on Plaintiffs’ side were
minors at the time the complaint was filed, they sued using next friends.1 See Fed. R.
Civ. P. 17(c). Plaintiffs’ motion avers that these three parties have reached the age of
majority, and therefore seeks to substitute them for their next friends. Although Federal
Rule of Civil Procedure 25 does not explicitly contemplate this substitution, the court
sees no reason why substitution would not be appropriate, under either that Rule or
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The fourth Plaintiff is the mother of the deceased Christopher Walker, who was
killed in the incident that underlies this lawsuit.

under Rule 15 permitting amendments to the complaint, when minor parties reach the
age of majority. See Erie R. Co. v. Fritsch, 72 F.2d 766, 767 (3d Cir. 1934) (applying
New Jersey law and holding amendment proper and judgment valid where the plaintiff
was a minor without a next friend at the time the suit commenced, a next friend was
appointed, and upon reaching the age of majority “an amendment [was] allowed and
judgment was entered for” the plaintiff); Burns v. Phillips, 50 F.R.D. 187, 188 (N.D. Ga.
1970) (finding Rule 25 does not permit substitution of guardians, but Rule 15 does); see
also Ju Shu Cheung v. Dulles, 16 F.R.D. 550, 553 (D. Mass. 1954) (“It appears from the
complaint that the plaintiff has now passed his 21st birthday. I will entertain a motion for
the removal of Ju Wah Tau as next friend, if presented.”). Therefore, the motion for
substitution will be granted and the clerk of the court will be directed to amend the
docket to reflect the change.
Only two of the four Plaintiffs appeared at the appointed time and place for the
hearing on the motion for default judgment pursuant to Rule 55(b)(2), even though
Plaintiffs’ counsel believed that all four would be present. Because Malik Slater and
Leon Merriweather did not appear, the court will be required to hold an additional
hearing to receive evidence regarding their injuries. During the hearing Bridget Walker
and Kejuana McCants each testified to their injuries. The court also requested that
Plaintiffs’ counsel submit a supplemental brief providing some legal basis for the
quantification of damages sought by the motion. The court suggested that the brief
could review, for example, jury or bench verdicts, or settlement amounts, from similar
cases involving comparable injuries. Plaintiffs’ counsel obliged, and in fact filed the brief
the day after the hearing, on August 11, 2011. In view of the need for additional
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consideration of the matter, the court will grant the motion in part, with respect to
Plaintiffs who appeared and testified, but will defer a decision with respect to the other
Plaintiffs and on the amount of the judgment until after the second hearing has been
held. Plaintiffs who testified at the first hearing on the motion are not required, but of
course are permitted, to attend the second hearing. Accordingly,
IT IS ORDERED that Plaintiffs’ “Motion for Substitution of Party Plaintiffs” [Dkt.
# 39] is GRANTED. The clerk of the court is DIRECTED to amend the docket to reflect
the substitution. Malik Slater is substituted for Kenota Slater, Leon Merriweather is
substituted for Carol Merriweather, and Kejuana McCants is substituted for Liz
McCants.
IT IS FURTHER ORDERED that Plaintiffs’ “Motion for Default Judgment” [Dkt.
# 33] is GRANTED IN PART. It is GRANTED with respect to Plaintiffs Bridget Walker
and Kejuana McCants. Default judgment will be entered following a determination of
the amount of the judgment, as described above.
Finally, IT IS ORDERED that counsel is DIRECTED to appear for the second
hearing on the “Motion for Default Judgment” [Dkt. # 33] on August 23, 2011, at 10:00
a.m.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: August 15, 2011

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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, August 15, 2011, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\10-12596.WALKER.GrantSubstitutionGrantInPartDefaultJudgment.jmp.wpd

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