Opinion
21-cv-8753 (ER)
06-26-2023
MICHAEL NIEVES, Plaintiff, v. SHIZHEN JIA, Defendant.
ORDER
Edgardo Ramos, U.S.D.J.
On September 6, 2022, Defendant advised the Court that pro se Plaintiff had died. Doc. 34. On September 8, 2022, the Court then stayed the proceedings in this case pending the submission of a motion for substitution by any party seeking to prosecute Plaintiff's action. See Doc. 35. Federal Rule of Civil Procedure 25(a)(1) states that if a motion for substitution is “not made within 90 days after service of a statement noting the death [of the party], the action by or against the decedent must be dismissed.” See also English v. Murphy-Lattanzi, No. 12-cv-419 (JS), 2015 WL 630248, at *2 (E.D.N.Y. Feb. 12, 2015) (“Rule 25(a)(1) provides a ninety-day window within which to file a motion for substitution, calculated from the filing of the suggestion of death. Failure to file a motion for substitution within the prescribed period generally requires dismissal of the action.” (internal citations omitted)); Nieves v. New York State Office of Mental Health, No. 20-cv-9502 (GHW), Doc. 68 (S.D.N.Y. Dec. 2, 2022) (dismissing related action pursuant to Rule 25(a)(1) following death of Michael Nieves). Nearly a year has passed, and no motion for substitution has been filed. Accordingly, this action is dismissed pursuant to Rule 25(a)(1).
He Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 *1962).
It is SO ORDERED.