Moore et al v. State Farm Insurance Company

Filing 11

ORDER scheduling a hearing for June 06, 2012 at 2:00 pm re 10 Consent MOTION for Extension of Time of Deadlines and Trial . Signed by Magistrate Judge Dennis Howell on 05/25/12. (emw)

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:11 CV 201
BARBARA P. MOORE AND MELVIN J.
MOORE, JR.,
Plaintiffs
v
STATE FARM INSURANCE COMPANY
T/D/B/A STATE FARM FIRE AND
CASUALTY COMPANY,
Defendant.

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ORDER

THIS MATTER is before the undersigned pursuant to a motion filed by
counsel for defendant entitled, “ Motion to Extend Deadlines in Pretrial Order and
Case Management Plan” (#10). In the motion, defendant requests that the Pretrial
Order and Case Management Plan be modified such that the schedule for completion
of discovery, mediation, dispositive motions and trial would all be extended. In the
alternative, defendant requests an extension of the time for completion of discovery,
mediation, and filing of dispositive motions.
In the motion, defendant reports the parties have been unable to complete
discovery in this case due to the death of plaintiff, Barbara P. Moore. Ms. Moore’s
death is reported to have occurred in late 2011. Defendant does not provide any
explanation as to why the plaintiff has not filed a suggestion of death of Ms. Moore
and why plaintiff has not filed a motion requesting that the court order substitution of
the personal representative of Ms. Moore’s estate in this matter, if such is appropriate.

Rule 25 of the Federal Rules of Civil Procedure provides:
(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 e 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 s provided in Rule 4. A statement
noting death must be served in the same manner. Service
may be made in any judicial district.

The undersigned will schedule a hearing in regard to the motion(#10). Counsel
for all parties are required to be present. At that time counsel for plaintiff will be
given an opportunity to explain why plaintiff’s counsel has not filed a notice of the
death of Ms. Moore and to further explain why a motion has not been filed requesting
permission to substitute the personal representative of Ms. Moore’s estate as a
plaintiff in this matter. Counsel for plaintiff and counsel for defendant will further be
required to describe in detail all discovery that has been attempted in this case and
provide good and sufficient reasons why the court should allow defendant’s motion.

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ORDER
IT IS, THEREFORE, ORDERED that a hearing be scheduled in regard to
defendant’s motion entitled “Motion to Extend Deadlines in Pretrial Order and Case
Management Plan” (#10).

Counsel for plaintiffs and defendant shall present

themselves to the court on June 6, 2012 at 2:00 o’clock p.m. At that time, counsel
for plaintiffs and defendant will be given an opportunity to present information to the
court as set forth in the body of this Order and provide such other information as they
deem appropriate in this matter.

Signed: May 25, 2012

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