Cope v. Brosius et al

Filing 56

MEMORANDUM ORDER - the plaintiffs motion for an order directing the counsel for the deceased defendant to substitute a new party-defendant, (Doc. 54 ),is DENIED and IT IS ORDERED as follows: A motion for substitution must be filedby plaintiff, proposing to substitute a new representative party for the deceased defendant on or before May 1, 2014. If no such motion is filed, this action may be dismissed pursuant to Rule 25. Signed by Magistrate Judge Martin C. Carlson on March 21, 2014. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EDWARD J. COPE,
Plaintiff
v.
GRETCHEN BROSIUS, et al.,
Defendants

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Civil No. 4:12-CV-2382
(Judge Brann)
(Magistrate Judge Carlson)

MEMORANDUM ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
The plaintiff, Edward J. Cope, is a police officer with the Borough of
Northumberland, who has sued Gretchen Brosius, fellow police officers, and other
Northumberland Borough municipal leaders, alleging various civil rights violations.
On December 20, 2013, counsel for Brosius filed a suggestion of death putting all
parties on notice that defendant Brosius had passed away. (Doc. 50)
In response to this filing Cope has now filed a motion which would have us
direct counsel for the deceased defendant to substitute a new defendant for Brosius.
(Doc. 54) Because this motion, in our view, confuses which party should be filing
a motion to substitute, we will DENY this request, but set a schedule for the plaintiff
to move to substitute a party in this case.

Federal Rule of Civil Procedure 25(a)(1) provides: “ [I]f 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 the service of a
statement noting the death, the action by and against the decedent must be dismissed.”
(Id.). The language of Federal Rule of Civil Procedure 25(a)(1) is permissive, “the
decision whether to substitute parties lies within the discretion of the trial judge and
he may refuse to substitute parties in an action even if the party so moves.”
Froning’s, Inc. v. Johnston Feed Serv., Inc., 568 F.2d 108, 110 n. 4 (8th Cir. 1978).
However, case law construing the rule recognizes the legal and practical impediments
which would flow from an interpretation of Rule 25 like that suggested by Cope,
which imposes an affirmative obligation on dead persons and their former counsel to
seek out substitutes to volunteer to join a lawsuit as a successor defendant for the
deceased. Therefore, as a general rule “plaintiffs cannot place upon the executors the
burden of substituting themselves as parties defendant [for a deceased defendant].”
Winkelman v. Gen. Motors Corp., 30 F. Supp. 112, 113 (S.D.N.Y. 1939). Instead,
in this setting the burden of moving to substitute rests with the plaintiff, and “the
burden does not shift from the plaintiffs to the executors.” Anderson v. Brady, 1
F.R.D. 589, 591 (E.D. Ky. 1941).
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In accordance with this case law, the plaintiff’s motion for an order directing
the counsel for the deceased defendant to substitute a new party-defendant, (Doc.54),
is DENIED and IT IS ORDERED as follows: A motion for substitution must be filed
by plaintiff, proposing to substitute a new representative party for the deceased
defendant on or before May 1, 2014. If no such motion is filed, this action may be
dismissed pursuant to Rule 25.
So ordered this 21st day of March, 2014.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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