AFS/IBEX, a Division of MetaBank v. Travelers Property Casualty Company of America et al

Filing 191

ORDER DENYING MOTION FOR SUBSTITUTION [#186] WITHOUT PREJUDICE. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AFS/IBEX, A DIVISION OF
METABANK,
Plaintiff,
Case No.: 15-cv-11409
Honorable Gershwin A. Drain

v.

TRAVELERS PROPERTY
CASUALTY COMPANY OF
AMERICA, et al.,
Defendants.
___________________________/
ORDER DENYING MOTION FOR SUBSTITUTION [#186] WITHOUT
PREJUDICE
This matter was scheduled to commence trial on August 28, 2017. Prior to
the commencement of trial, Defendants’ attorney informed the Court that
Defendant Keith Larson had passed away on the morning of August 28, 2017. The
trial was adjourned so that the decedent’s wife, Defendant Karen Larson, could
commence probate proceedings and be appointed as personal representative for her
husband’s estate.
Assignees/Cross-Claimants now move for substitution. Defendant Karen
Larson has failed to file a Response to the instant motion, however at a status
conference held on October 17, 2017, counsel for Defendant Karen Larson

indicated that he had no objection to the present motion. For the reasons that
follow, the Court will deny the present motion without prejudice.
Rule 25 governs the substitution of parties. It states in relevant part that:
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.
Fed. R. Civ. P. 25(a)(1). Plaintiffs seek to substitute Karen Larson for the estate of
Keith Larson. While the Court does not disagree that substitution is warranted
under the circumstances herein, it cannot grant the Assignees/Cross-Claimants’
requested relief because several conditions have not been followed in accordance
with Rule 25.
Specifically, a formal, written statement noting death has not been filed and
properly served under Rules 4 and 5. See Tolliver v. Leach, 126 F.R.D. 529, 53031(W.D. Mich. 1989); Kasting v. American Family Mut. Ins. Co., 196 F.R.D. 595,
600 (D. Kan. 2000); 6-25 Moore’s Federal Practice-Civil §25-13 (2017). “Oral
notice, even on the record in court or in a deposition, is insufficient.” Tolliver, 126
F.R.D. at 530 (citing Dolgow v. Anderson, 45 F.R.D. 470, 471 (E.D.N.Y. 1968)).
Moreover, Rule 25(a)(3) requires that “[a] motion to substitute, together
with a notice of hearing be served on the parties as provided in Rule 5 and on

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nonparties as provided in Rule 4. A statement noting death must be served in the
same manner.” Fed. R. Civ. P. 25. See Atkins v. City of Chicago, 547 F.3d 869,
873 (7th Cir. 2008)(“[N]onparties with a significant financial interest in the case,
namely the decedent’s successors (if his estate has been distributed) or personal
representative (it has not been), should certainly be served.”).
Accordingly, the Court will require Assignees/Cross-Claimants to remedy
the issues with respect to substitution and they may then renew their motion for
substitution.
SO ORDERED.
Dated: October 27, 2017

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record
by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk 

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