Wisser v. West Virginia State Police, et al

Filing 45

MEMORANDUM OPINION AND ORDER granting Plaintiff's 37 MOTION to Substitute Party. James Victor Wisser added as Plaintiff. Terminated party: James Wisser. Signed by Senior Judge David A. Faber on 6/2/2014. (cc: counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD

JAMES WISSER,
Plaintiff,

v.

CIVIL ACTION NO. 1:13-3377

WEST VIRGINIA STATE POLICE,
TROOPER D.C. GRAHAM, individually
and in his official capacity, and
TROOPER A.P. CHRISTIAN, individually
and in his official capacity,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s motion to
substitute parties pursuant to Rule 25 of the Federal Rules of
Civil Procedure.

(Doc. No. 37).

The defendants have not filed

a response in opposition to this motion.

For reasons stated

below, plaintiff’s motion to substitute parties is GRANTED.
On February 25, 2013, James Wisser filed suit against the
West Virginia State Police and several of its employees,
complaining that they had used excessive force against him while
he was in custody.

(Doc. No. 1).

Nearly one year later, on

February 15, 2014, Wisser died from injuries sustained in an
unrelated motor vehicle accident.

(Doc. No. 37-2 at 1).

Following Wisser’s death, on May 13, 2014, his counsel filed a
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suggestion of death and a motion to substitute parties pursuant
to Rule 25 of the Federal Rules of Civil Procedure.
37).

(Doc. No.

In his motion, the plaintiff seeks to substitute James

Victor Wisser, the deceased’s father and administrator of his
estate.

(Doc. No. 37 at 1; Doc. No. 37-2; Doc. No. 37-3).

Rule 25 of the Federal Rules of Civil Procedure provides
that:
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 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.
Fed. R. Civ. P. 25(a)(1).

Rule 25 does not impose a time limit

for the substitution until “proper service of a suggestion of
death [is commenced] upon the record.”

Fariss v. Lynchburg

Foundry, 769 F. 2d 958, 963 (4th Cir. 1985).

“[T]he suggestion

of death is served in the same manner as the motion to
substitute, [and] a party may be served through his attorney . .
. .”

Id. (citing Fed. R. Civ. P. 4(d)(1) (internal citations

omitted)).
As stated above, plaintiff’s counsel filed the suggestion
of death on May 13, 2014.

The motion to substitute was filed

that same day and, accordingly, is timely.
Therefore, the motion to substitute parties pursuant to
Rule 25 of the Federal Rules of Civil Procedure is GRANTED.
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The

Clerk is directed to send a copy of this Memorandum Opinion and
Order to all counsel of record.
It is so ORDERED this 2nd day of June, 2014.
ENTER:

David A. Faber
Senior United States District Judge

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