Opinion
20-CV-02331(PMH)
12-16-2022
JANE DOE, Plaintiff, v. DR. MARJORIE KING, KATHLEEN MARTUCCI, GLENN M. SELIGER. JACQUELINE VELEZ, LINDA EGENES, JOHN MATHEW, CHRISTINE KEHOE, ROSEMARY GALVIN, 1-100 JOHN ROES, Defendants.
NOTICE OF MOTION
PHILIP M. HALPERN, UNITED STATES DISTRICT JUDGE
PLEASE TAKE NOTICE that upon the annexed Declaration of Daniel S. Moretti, sworn to December 7, 2022, and the exhibits annexed thereto; the accompanying Memorandum of Law, dated December 7, 2022; and all pleadings and prior proceedings herein, defendants DR. MARJORIE KING, KATHLEEN MARTUCCI, GLENN M. SELIGER, JACQUELINE VELEZ, LINDA EGENES, JOHN MATHEW, CHRISTINE KEHOE, and ROSEMARY GALVIN (collectively, "Defendants"), will move this Court, before the Honorable Philip S. Halpern, U.S.D.J., for an Order pursuant to Fed.R.Civ.P. 25(d) granting Defendants' motion to substitute defendant Marjorie King, M.D., in her official capacity, with her successor, Glenn M. Seliger, M.D., in his official capacity; directing the Clerk of the Court to amend the caption accordingly; and awarding Defendants such other and further relief as the Court deems just and proper.
PLEASE TAKE FURTHER NOTICE that pursuant to the Court's November 30, 2022 Order (Doc. No. 136), answering papers, if any, must be served on or before December 14, 2022.
Motion granted. Plaintiff's opposition fails to rebut defendants' motion under Fed.R.Civ.P. 25(d), which provides, in relevant part, that "[t]he officer's successor is automatically substituted as a party" when a pubic officer sued in their official capacity ceases to hold office while the action is pending. (emphasis added). Indeed, Plaintiff appears to concede that Dr. King should be "removed from this action in her official capacity pursuant to Fed.R.Civ.P. Rule 25(d)," though Plaintiff then goes on to ask that she be added as a defendant in her individual capacity under Rule 21. (Doc. 145 at 7). The Court declines to consider Plaintiff's "cross-motion" for affirmative relief -- to join Dr. King in her individual capacity under Rule 21 and strike certain of Defendants' affirmative defenses -- that was improperly made via her opposition brief.
Accordingly, defendant Marjorie King, M.D., is hereby substituted under Fed.R.Civ.P. 25(d) with Glenn M. Seliger, M.D., in his official capacity. The caption of this action shall be changed accordingly to reflect the substitution.
The Clerk of Court is respectfully directed to terminate Dr. Marjorie King as a defendant in this action.
SO ORDERED.