Opinion
21-12237
02-12-2024
CLEVELAND KEALOHAPAUOLE, Plaintiff, v. CORRECTIONAL OFFICER ITOE, Defendant.
George Caram Steeh United States District Judge
REPORT AND RECOMMENDATION TO DISMISS UNDER FED. R. CIV. P. 25(A)(1)
Curtis Ivy, Jr. United States Magistrate Judge
I. Discussion
This case is before the Court on the suggestion of Plaintiff's death filed October 16, 2013. (ECF No. 34). The next day, the undersigned issued an Order directing Defendant to serve the suggestion of death and a copy of that Order on a successor or next of kin to the Plaintiff in accordance with the rules for service of process under Fed.R.Civ.P. 4. (ECF No. 36). On October 31, 2023, Defendant filed a notice of completed service. Defendant mailed the required documents to Plaintiff's sister by United States certified mail. Plaintiff's sister signed and returned the green card indicating completed, proper service of the Order and suggestion of death.
The Order that was served on Plaintiff's sister explained that under Federal Rule of Civil Procedure 25(a)(1), if a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. Rule 25(a)(1) permits a motion for substitution to be made “within 90 days after service of a statement noting the death[.]” The Rule further provides that if such a motion is not timely filed “the action by or against the decedent must be dismissed.” Fed.R.Civ.P. 25(a)(1).
“Two steps are required for the 90-day period to commence. First, the suggestion of death must be made upon the record.” Jones v. Leiter, 2019 WL 2994499, at *1 (W.D. Mich. July 9, 2019) (quoting Jenkins v. Macatawa Bank Corp., 2007 WL 737746, at *1 (W.D. Mich. Mar. 7, 2007)). “Second, the suggestion of death must be served upon the other parties and the deceased's successor [and i]f the deceased's successor is a non-party, then the suggestion of death must be served in accordance with Rule 4.” Id.
Defendant achieved both steps to begin the 90-day period-he filed a suggestion of death and properly served the suggestion of death on a next of kin. More than 90 days have passed since service of the suggestion of death and Court's Order. A next of kin has not filed a motion to substitute parties to continue this lawsuit. For this reason, the undersigned RECOMMENDS that this case be DISMISSED.
Defendant is DIRECTED to mail a copy of this report and recommendation by U.S. Mail to Plaintiff's sister within 2 business days of today's date.
II. Procedure for Objections
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health and Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Loc. 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.