Wheatt et al v. City of East Cleveland et al

Filing 404

Order signed by Judge James S. Gwin on 10/22/2019. The Court grants the plaintiff's motion to substitute Karen Perry, as Executor of Michael Perry's Estate, as the Defendant in place of Michael Perry, for the reasons as set forth in this order. (Related Doc # 396 )(S,KM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------------------DERRICK WHEATT, et al.,
:
:
Plaintiffs,
:
:
vs.
:
:
CITY OF EAST CLEVELAND, et al.,
:
:
Defendants.
:
------------------------------------------------------------------

CASE NOS. 1:17-CV-377 &
1:17-CV-611 (consolidated)
OPINION & ORDER
[Resolving Doc. 396]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
On November 15, 2018, Plaintiffs Derrick Wheatt, Laurese Glover, and Eugene
Johnson won a jury verdict against Defendants Vincent Johnstone and Michael Perry. 1
Defendant Michael Perry later died on December 9, 2018. 2
Plaintiffs now move to substitute Karen Perry, as Executor of Michael Perry’s Estate,
in place of Michael Perry. 3 Defendant City of East Cleveland opposes; 4 Plaintiffs reply. 5
The Court grants Plaintiffs’ motion because the requested substitution complies with
the relevant Federal Rule of Civil Procedure requirements.
I.

Legal Standard

If a party dies and the claim is not extinguished, the Court may order substitution of
the proper party. 6 After the filing and service of a death notice, any party or the decedent's
successor or representative may move for substitution. 7 If the motion is not made within

1

Doc. 359.
Doc. 393.
3
Doc. 396.
4
Doc. 398; Doc. 401.
5
Doc. 399.
6
Fed. R. Civ. P. 25(a)(1).
7
Fed. R. Civ. P. 25(a).
2

Case Nos. 1:17-cv-377 & 1:17-cv-611
Gwin, J.
90 days after service of a statement noting the death, the action by or against the decedent
must be dismissed. 8
Rule 25(a) requires two affirmative steps to trigger the running of the 90-day
deadline for the substitution motion. 9 First, a death notice must be made upon the
record. 10 Second, the death notice must be served upon the parties, as provided in Rule 5,
and upon nonparties, as provided in Rule 4. 11
II.

Analysis

Plaintiffs’ motion complies with the Rule 25(a) procedural requirements. Plaintiffs
filed the death notice on July 9, 2019. 12 Plaintiffs served the notice on all Parties in
accordance with Rule 5 and on nonparty Karen Perry in accordance with Rule 4. 13 Within
90 days of filing and serving the notice, Plaintiffs moved for substitution. 14
Defendant East Cleveland argues that Plaintiffs’ motion to substitute should be
denied as untimely. It contends that the 90-day deadline commenced December 19, 2018,
when East Cleveland referenced Perry’s death in a court filing. 15
Defendant’s argument is unpersuasive. As described above, Rule 25 gives the 90day deadline triggering requirements. A notice must be (1) filed with the court and (2)
served on all parties in accordance with Rule 5 and on all nonparties in accordance

Id.
Lawson v. Cty. of Wayne, No. 11-11163, 2012 WL 5258216, at *4-5 (E.D. Mich. Oct. 23, 2012).
10
Fed. R. Civ. P. 25(a)(3); Golden Gate Nat’l Senior Care, LLC v. Slaven, No. CV 5:17-161-KKC, 2018 WL
8
9

1474072, at *4 (E.D. Ky. Mar. 26, 2018).
Fed. R. Civ. P. 25(a)(3); Golden Gate Nat’l Senior Care, 2018 WL 1474072, at *4.
12
Doc. 393.
11

13
14

See id.

Doc. 396.
15
Doc. 401 (citing Doc. 374 at 2).

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Case Nos. 1:17-cv-377 & 1:17-cv-611
Gwin, J.
with Rule 4. 16 Defendant’s December 2018 reference to Michael Perry’s death did not
satisfy the service requirement and therefore did not trigger the 90-day deadline.
III.

Order

The Court GRANTS Plaintiffs’ motion to substitute Karen Perry, as Executor of
Michael Perry’s Estate, as the Defendant in place of Michael Perry.
IT IS SO ORDERED.

s/

Dated: October 22, 2019

16

James S. Gwin

JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Fed. R. Civ. P. 25(a)(3); Golden Gate Nat’l Senior Care, 2018 WL 1474072, at *4.

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