Amaker et al v. Goord et al

Filing 278

ORDER re: notification of death of plaintiff George Fluellen. Signed by Hon. H. Kenneth Schroeder, Jr. on January 9, 2012. (APG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANTHONY D. AMAKER, et al.,
Plaintiffs,

06-CV-490A(Sr)

v.
COMMISSIONER GLENN S. GOORD, et al.
Defendants.

ORDER

On or about December 30, 2011, this Court was orally advised by
Reginald Fluellen, plaintiff’s brother, that plaintiff, George Fluellen, died on June 13,
2011. To the extent the Estate of George Fluellen, by the Administrator or
Representative of the Estate, wishes to proceed with this action, this Court hereby
directs the Estate of George Fluellen, pursuant to Rule 25(a) of the Federal Rules of
Civil Procedure, that a Notice of Suggestion of Death, to include a copy of the death
certificate, must be filed with this Court within 30 days. Rule 25(a) provides in part:
A motion for substitution may be made by any party or by
the decedent’s successor or representative. If the motion
[for substitution] is not made within 90 days after service of a
statement noting the death, the action by or against the
decedent must be dismissed.
In addition, as provided in Rule 25(a), within 90 days from the filing date
of the Notice of Suggestion of Death, the Estate of George Fluellen, by its Administrator

or Representative, must then file and serve a motion to be substituted for the plaintiff
George Fluellen in this matter.1

The failure to timely file and serve such Notice of Suggestion of Death
and such motion to substitute the Administrator or Representative of the Estate of
George Fluellen for the plaintiff George Fluellen within time periods set forth above, will
result in the dismissal of that portion of this action by plaintiff George Fluellen.

SO ORDERED.

DATED:

Buffalo, New York
January 9, 2012

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

1

See Labounty v. Coughlin, No. 93 Civ. 3443(BSJ), 2003 WL 21692766, at *5
(S.D.N.Y. July 21, 2003) (holding that by reason of plaintiff’s pro se status, the 90 day
period ran from the date of entry of the Court’s Order, and not upon service of the
Suggestion of Death, which was served more than 90 days earlier), citing, McCorkle v.
Juchenwicz, No. 94 CIV 6363(TPG), 1999 WL 163205, at *2 (S.D.N.Y. Mar.23, 1999)
(stating, “[i]n all fairness, [a pro se plaintiff] cannot be expected to be conversant with
the rules about substitution after the death of a party, and in particular cannot be
expected to know about Rule 25.").
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