Filed: Oct. 29, 2019
Latest Update: Oct. 29, 2019
Summary: ORDER ON NOTICE OF SUGGESTION OF DEATH SHIVA V. HODGES , Magistrate Judge . This case comes before the court on the Suggestion of Death of defendant Preston Wider ("Wider"), as indicated by Wider's counsel. [ECF No. 67]. This case has been referred to the undersigned pursuant to 28 U.S.C. 636(b)(1)(A) and (B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.). Pursuant to Fed. R. Civ. P. 25(a)(1), "if a party dies and the claim is not extinguished, the court may order substitution of the proper
Summary: ORDER ON NOTICE OF SUGGESTION OF DEATH SHIVA V. HODGES , Magistrate Judge . This case comes before the court on the Suggestion of Death of defendant Preston Wider ("Wider"), as indicated by Wider's counsel. [ECF No. 67]. This case has been referred to the undersigned pursuant to 28 U.S.C. 636(b)(1)(A) and (B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.). Pursuant to Fed. R. Civ. P. 25(a)(1), "if a party dies and the claim is not extinguished, the court may order substitution of the proper ..
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ORDER ON NOTICE OF SUGGESTION OF DEATH
SHIVA V. HODGES, Magistrate Judge.
This case comes before the court on the Suggestion of Death of defendant Preston Wider ("Wider"), as indicated by Wider's counsel. [ECF No. 67]. This case has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.).
Pursuant to Fed. R. Civ. P. 25(a)(1), "if a party dies and the claim is not extinguished, the court may order substitution of the proper party." The rule states that "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." Id. "In order to commence the running of the ninety-day period, the suggesting party must personally serve the suggestion of death on the decedent's personal representative, if appointed, or on the successors or representatives of the decedent." Brooks v. Arthur, No. 6:08-cv-28, 2011 WL 1212254, *1 (W.D.Va. Mar. 30, 2011) (citing Fariss v. Lynchburg Foundry, 769 F.2d 958, 961-62 (4th Cir. 1985) ("Personal service of the suggestion of death alerts the nonparty to the consequences of death for a pending suit, signaling the need for action to preserve the claim if so desired.")). In Fariss, the Fourth Circuit found that service of the suggestion of death on the decedent's attorney alone was insufficient. Fariss, 769 F.2d at 962.
There is no indication on the record that the Suggestion of Death has been served on Wider's successors or other representatives pursuant to Fed. R. Civ. P. 4.1 Therefore, Wider's counsel is instructed to serve a copy of its Suggestion of Death [ECF No. 67] and this order, pursuant to Fed. R. Civ. P. 4, on any known nonparty successor or representative of Wider and to file proof of said service by November 19, 2019. If no party files a motion for substitution within 90 days from the service of the personal representative, the action against Wider will be dismissed.
The court notes that before Fed. R. Civ. P. 25(a) can be employed to substitute a new party for a deceased party, the substantive law controlling the suit must allow for survival of the cause of action. Where the cause of action does not survive the death of a party, there can be no substitution for that party under the rule. See, e.e., Asklar v. Honeywell, Inc., 95 F.R.D. 419, 422 (D. Conn. 1982) (holding substantive law, not Rule 25(a), determines whether case may proceed after death of party).
IT IS SO ORDERED.
