Opinion
Case No. 11-cv-12331
04-18-2012
MARK JOZWIAK, Plaintiff, v. HOME DEPOT U.S.A., INC., Defendant.
Honorable Thomas L. Ludington
ORDER DENYING PLAINTIFF'S COUNSEL'S REQUEST TO STAY PROCEEDINGS
WITHOUT PREJUDICE
On April 16, 2012, counsel for Plaintiff Mark Jozwiak filed a suggestion of death, noting that Mr. Jozwiak has died. Plaintiff's counsel requests that the case be stayed indefinitely until an estate has been opened and a personal representative for Mr. Jozwiak's estate has been appointed. ECF No. 17.
If a party dies, Federal Rule of Civil Procedure 25(a)(1) establishes a 90-day time period in which a motion substituting a proper party may be made "after service of a statement noting the death." Rule 25 was amended an 1963 in order to liberalize the procedure. 7C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1955 (3d ed. 2007). The date of death no longer begins the time period for substituting a successor party, as it did under the former rule. Instead, the time period does not begin until the death is noted on the record by service of a statement of the fact of death. Indeed, there is no particular time period within which that statement must be made after the death occurs. Id. Also, any party to the case may make the filing, United States v. Currency $11,331, 482 F. Supp. 2d 873, 885 (E.D. Mich. 2007), but as noted in Moore's Federal Practice, the representative of a plaintiff will rarely have any reason to file a suggestion of death. 6 James Wm. Moore et al., Moore's Federal Practice § 25.13[2][a] (3d ed. 2006).
A suggestion of death must be in writing and identify the representative to be substituted, and served on all parties in accordance with the procedures of Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons. Grandbouche v. Lovell, 913 F.2d 835, 836 (10th Cir. 1990) (per curiam); Reynolds v. City of Detroit, No. 08-cv-14909, 2009 WL 5214873, at *3 (E.D. Mich. Dec. 28, 2009); Blair v. Beech Aircraft Corp., 104 F.R.D. 21, 22 (W.D. Pa. 1984) (holding that "reference to the death of the Plaintiff in the pleadings is not sufficient"); see also 7C Federal Practice & Procedure § 1955. The motion to substitute a party must be filed by a party or the successors or representatives of the decedent, not an attorney for the deceased party acting on his own. Currency $11,331, 482 F. Supp. 2d at 885. "If a motion [to substitute the proper party] 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). The court may extend the period for substitution if a request is made before the expiration of the 90-day period and also may allow substitution on motion made after the expiration of the 90-day period on a showing that the failure to act earlier was the result of excusable neglect. 7C Federal Practice & Procedure § 1955.
Here, Plaintiff's counsel's suggestion of death does not identify the successor representative of the deceased and is thus insufficient to commence the 90-day time period within which to file a motion to substitute the proper party to the case. In the event that Plaintiff's counsel wishes to pursue his request for a stay of proceedings, his request must be made through a motion explaining why a stay of proceedings is necessary at this juncture.
Accordingly, it is ORDERED that Plaintiff's counsel's request for a stay of proceedings is DENIED WITHOUT PREJUDICE.
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THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on April 18, 2012.
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TRACY A. JACOBS