Wallace v. Community Radiology, et al.
Filing
77
MEMORANDUM OPINION AND ORDER denying Plaintiff's 46 MOTION for Default Judgment. The parties are permitted, but not required, to file a memorandum, with exhibits if appropriate, regarding whether plaintiff's claims should be dismissed as time-barred as to Valery P. Sobzynski, M.D. Any submissions must be filed no later than 7/25/2014. Signed by Senior Judge David A. Faber on 6/25/2014. (cc: counsel of record and any unrepresented party) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JACQUELINE WALLACE,
Plaintiff,
v.
CIVIL ACTION No. 1:09-0511
COMMUNITY RADIOLOGY, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s motion for
default judgment.
(Doc. No. 46).
held a hearing on that motion.
On June 23, 2014, the court
For the reasons discussed below,
that motion is DENIED.
In her motion, plaintiff has moved for a default judgment
against the Estate of Valery P. Sobzynski, M.D.
However, as the
court noted during the hearing, the Estate of Valery P.
Sobzynski, M.D. is not a party to this civil action.
defendant is Valery P. Sobzynski, M.D.
The named
Specifically, neither
plaintiff nor any other party filed a motion to substitute the
Estate of Valery P. Sobzynski, M.D. for Valery P. Sobzynski,
M.D. who, according to the record, died on January 17, 2011.
For this reason, the court cannot enter a default judgment
against a nonparty and, accordingly, the motion is denied.
Furthermore, the court must determine whether this action
is now time-barred as to Valery P. Sobzynski, M.D.
Federal Rule
of Civil Procedure 25(a) provides in pertinent part:
(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 of 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.
It is not immediately clear whether “service of a statement
noting the death” within the meaning of Federal Rule of Civil
Procedure 25(a) has been accomplished.*
For this reason, the
parties are hereby permitted, but not required, to file a
memorandum, with exhibits if appropriate, regarding whether
plaintiff’s claims should be dismissed as time-barred as to
Valery P. Sobzynski, M.D.
Any submissions must be filed no
later than July 25, 2014,
The Clerk is directed to forward a copy of this
Memorandum Opinion and Order to counsel of record and
unrepresented parties.
IT IS SO ORDERED this 25th day of June, 2014.
ENTER:
David A. Faber
Senior United States District Judge
*
At the hearing, counsel for plaintiff tendered to the
court a document which he contended was “a statement noting the
death” and that document was admitted as Plaintiff’s Exhibit 1.
2
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