Kheibari v. Rite Aid Corporation

Filing 74

OPINION and ORDER. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL KHEIBARI,
Plaintiff,
v.

Case No. 14-11496
Honorable Linda V. Parker

RITE AID CORPORATION,
Defendant.
_________________________/
OPINION AND ORDER
On April 14, 2014, Plaintiff, without the assistance of counsel, initiated this
lawsuit against Defendant alleging employment discrimination. Plaintiff has since
retained counsel to represent him in this matter. (ECF No. 10.) The case initially
was assigned to the Honorable Lawrence P. Zatkoff, now deceased. On February
22, 2015, after his passing, the matter was reassigned to the undersigned pursuant
to Administrative Order 15-AO-015.
Defendant filed a motion for partial summary judgment on February 28,
2017. (ECF No. 66.) Plaintiff filed an opposition brief on March 24, 2017 and
Defendant filed a reply brief on April 6, 2017. (ECF Nos. 69, 70.) On June 16,
2017, the Court received a notice of Plaintiff Michael Kheibari’s death pursuant to
Federal Rule of Civil Procedure 25(a)(1). (ECF No. 71.) This Court held a
telephonic status conference on June 20, 2017 to discuss the notice of death.

Federal Rule of Civil Procedure 25(a) sets forth the procedure to be followed
when a party dies during the proceedings:
a) Death.
(1) Substitution if the Claim Is Not Extinguished.[1] 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.
(2) Continuation Among the Remaining Parties. After a party’s
death, if the right sought to be enforced survives only to or against the
remaining parties, the action does not abate, but proceeds in favor of
or against the remaining parties. The death should be noted on the
record.
(3) Service. A motion to substitute, together with a notice of
hearing, must be served on the parties as provided in Rule 5 and on
nonparties as provided in Rule 4. A statement noting death must be
served in the same manner. Service may be made in any judicial
district.
Fed. R. Civ. P. 25(a). “The objective of the suggestion of death set forth in Rule
25(a)(1) is to alert nonparties to the consequences of the death of a party in a
pending lawsuit so that they may act if they desire to preserve the decedent’s
claim.” Gruenberg v. Maricopa Cnty. Sheriff’s Office, No. 06-0397, 2008 WL
2001253, at *1 (D. Ariz. May 7, 2008) (citing Fariss v. Lynchburg Foundry, 769
The question of whether a federal civil rights claim survives the plaintiff’s death is
a question of state law. See Robertson v. Wegmann, 436 U.S. 584, 588-89 (1978).
Under Michigan law, “[a]ll actions and claims survive death” of the injured person
during the pendency of the action. See Mich. Comp. Laws § 600.2921.

1

2

F.2d 958, 962 (4th Cir. 1985)). “The rule establishes a procedure that protects
those who have an interest in the litigation and the authority to act on behalf of the
decedent by permitting substitution for the deceased party without unduly
burdening the surviving party.” Id. (citing Barlow v. Ground, 39 F.3d 231, 233-34
(9th Cir. 1994)).
Thus the Court is issuing this Order to place the fact of Plaintiff’s death on
the record and to alert Plaintiff’s successor or representative, if any, of the need to
file a motion for substitution within ninety days (90) of this Order if he or she
wants to continue this litigation.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: June 21, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, June 21, 2017, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Case Manager

3