Filed: Jun. 15, 2016
Latest Update: Jun. 15, 2016
Summary: REPORT AND RECOMMENDATION 1 MAC R. McCOY , Magistrate Judge . TO THE UNITED STATES DISTRICT COURT This cause is before the Undersigned on the Suggestion of Death filed on February 25, 2016 indicating that Plaintiff James Marshall is deceased. ( Doc. 50 ). Pursuant to Fed. R. Civ. P. 25, [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 representat
Summary: REPORT AND RECOMMENDATION 1 MAC R. McCOY , Magistrate Judge . TO THE UNITED STATES DISTRICT COURT This cause is before the Undersigned on the Suggestion of Death filed on February 25, 2016 indicating that Plaintiff James Marshall is deceased. ( Doc. 50 ). Pursuant to Fed. R. Civ. P. 25, [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 representati..
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REPORT AND RECOMMENDATION1
MAC R. McCOY, Magistrate Judge.
TO THE UNITED STATES DISTRICT COURT
This cause is before the Undersigned on the Suggestion of Death filed on February 25, 2016 indicating that Plaintiff James Marshall is deceased. (Doc. 50). Pursuant to Fed. R. Civ. P. 25,
[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 service of a statement noting the death, the action by or against the decedent must be dismissed.
Fed. R. Civ. P. 25(a)(1).
According to Rule 25, a court is permitted to dismiss a party if the substitution is not made within ninety (90) days after the date that a suggestion of death is filed. This ninety (90) day time period is not intended to act as a bar to an otherwise meritorious action, and extensions of this time period are liberally granted. Hall v. Infirmary Health Sys., No. CIV.A. 06-0791WSB, 2008 WL 1774164, at *1 (S.D. Ala. Apr. 15, 2008). In this case, however, the Undersigned entered an Order to Show Cause (Doc. 64) alerting counsel for Plaintiff James Marshall that the ninety (90) day time period had lapsed. The Order to Show Cause required counsel for Plaintiff James Marshall to show good cause why James Marshall should not be dismissed from this action for failure to file a motion for substitution. No response was filed to the Order to Show Cause and no request for extension of time was filed. Accordingly, the Undersigned recommends that James Marshall be dismissed from this action.
IT IS RESPECTFULLY RECOMMENDED:
That Plaintiff James Marshall be dismissed from this action for failure to file a motion for substitution of party pursuant to Fed. R. Civ. P. 25 and for failure to file a response to the Order to Show Cause.
