BANNER LIFE INSURANCE COMPANY v. BONNEY, 2:11cv198. (2012)
Court: District Court, D. Virginia
Number: infdco20120727c04
Visitors: 8
Filed: Jul. 25, 2012
Latest Update: Jul. 25, 2012
Summary: OPINION AND ORDER ROBERT G. DOUMAN, Senior District Judge. This matter is presently before the Court upon Plaintiff Banner Life Insurance Company's ("Plaintiff) Motion to Dismiss, filed June 25, 2012. Plaintiff indicates that all remaining persons having a purported interest in the proceeds of the life insurance policy of Clyde B. Pitchford, Jr. at issue in this case have been properly served. However, as Plaintiff acknowledges, Defendant Christopher W. Dyer was deceased 1 prior to service of
Summary: OPINION AND ORDER ROBERT G. DOUMAN, Senior District Judge. This matter is presently before the Court upon Plaintiff Banner Life Insurance Company's ("Plaintiff) Motion to Dismiss, filed June 25, 2012. Plaintiff indicates that all remaining persons having a purported interest in the proceeds of the life insurance policy of Clyde B. Pitchford, Jr. at issue in this case have been properly served. However, as Plaintiff acknowledges, Defendant Christopher W. Dyer was deceased 1 prior to service of ..
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OPINION AND ORDER
ROBERT G. DOUMAN, Senior District Judge.
This matter is presently before the Court upon Plaintiff Banner Life Insurance Company's ("Plaintiff) Motion to Dismiss, filed June 25, 2012. Plaintiff indicates that all remaining persons having a purported interest in the proceeds of the life insurance policy of Clyde B. Pitchford, Jr. at issue in this case have been properly served. However, as Plaintiff acknowledges, Defendant Christopher W. Dyer was deceased1 prior to service of Plaintiff's Second Amended Complaint. The decedent's wife, Phyllis Dyer, also a party to this litigation, informed Plaintiff's counsel of her husband's death by notarized letter on March 27, 2012, which Plaintiff's counsel filed with the Court on March 30, 2012. Plaintiff then filed the Suggestion on Record of Party's Death on June 28, 2012.
Rule 25 of the Federal Rules of Civil Procedure provides that, "If a party dies and the claim is not extinguished ... [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). There is no indication in the record that the Estate of Christopher W. Dyer has properly been served. Accordingly, the Court hereby ORDERS Plaintiff serve the Suggestion of Death and the Second Amended Complaint on the Estate of Christopher W. Dyer within 20 days of the entry of this Order. Such service must be carried out in compliance with Federal Rule of Civil Procedure 5. The Court will take Plaintiff's Motion to Dismiss UNDER ADVISEMENT until the passage of the 90 day period provided for in Rule 25, or until the decedent's Estate files notice with the Court that it intends either to substitute a party on behalf of the decedent or not to pursue its potential claim against the Policy.
The Clerk of Court is DIRECTED to send a copy of this Order to all Counsel of Record and pro se Parties.
IT IS SO ORDERED.
FootNotes
1. According to the Suggestion on Record of Party's Death, Mr. Dyer died on March 17, 2012.
Source: Leagle
