Burston v. Cooper

Filing 19

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that within ninety (90) days of September 28, 2012, plaintiff shall file a motion to substitute under Fed.R.Civ.P. 25. IT IS FURTHER ORDERED that within ninety (90) days of September 28, 2012, in addition to filing a motion to substitute the proper party, plaintiff shall also provide the Court an address at which the new party may be served. IT IS FURTHER ORDERED that plaintiff's failure to comply with this Court Memorandum and Order will result in a dismissal of this action Response to Court due by 12/27/2012. Signed by Magistrate Judge Lewis M. Blanton on 10/4/2012. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RONALD DALE BURSTON, JR.,
Plaintiff,
v.
JAMES COOPER,
Defendant.

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No. 1:12CV28 LMB

MEMORANDUM AND ORDER
Before the Court is a return of service from the United States Marshal’s
Service relating to defendant Cooper. As plaintiff is aware, because he is
proceeding in forma pauperis in this action, pursuant to 28 U.S.C. § 1915, the Court
attempted to effectuate service on Mr. Cooper on plaintiff’s behalf through the
United States Marshal’s Service.
On September 28, 2012, the United States Marshal’s Service notified the
Court that defendant James Cooper had died. When a party dies, the Court looks to
Federal Rule of Civil Procedure 25 for the rules governing substitution of parties:
(a) Death
(1) Substitution if the Claim is Not Extinguished. 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.
Under the Federal Rules, plaintiff has ninety (90) days from service of the statement
notifying the Court of the death to provide the Court with a motion to substitute the
proper party. On that same date, plaintiff must also provide the Court with an
address at which the new party may be served, pursuant to Fed.R.Civ.P. 4 and 28
U.S.C. § 1915. Plaintiff’s failure to do so within that time period will result in a
dismissal of his claim under Rule 25.
Accordingly,
IT IS HEREBY ORDERED that within ninety (90) days of September 28,
2012, plaintiff shall file a motion to substitute under Fed.R.Civ.P. 25.
IT IS FURTHER ORDERED that within ninety (90) days of September 28,
2012, in addition to filing a motion to substitute the proper party, plaintiff shall also
provide the Court an address at which the new party may be served.
IT IS FURTHER ORDERED that plaintiff’s failure to comply with this
Court Memorandum and Order will result in a dismissal of this action.
Dated this 4th

day of October, 2012.

LEWIS M. BLANTON
UNITED STATES MAGISTRATE JUDGE

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