Opinion
20-11238
04-29-2024
Richard Kreiner, Plaintiff, v. Michael Thomas, Defendant.
Anthony P. Patti Mag. Judge
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR LEAVE TO AMEND CAPTION [49]
JUDITH E. LEVY UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff's renewed motion for “leave to amend the caption to reflect the death of Plaintiff Richard Kr[ei]ner by adding Taylor West as the Personal Representative of the Estate of Richard Kr[ei]ner pursuant to [Federal Rule of Civil Procedure] 25 (a).” (ECF No. 49, PageID.762.) Except for the caption and the first sentence, the current motion is identical to the previous motion submitted by Plaintiff's counsel. (Compare ECF No. 49 with ECF No. 46.) Moreover, the present motion fails to address any of the deficiencies identified in the Court's prior Order. (See ECF No. 48, PageID.759-760.)
The motion incorrectly identifies Plaintiff as “Taylor West, as Personal Representative of The Estate of Richard Kreiner, Deceased.” (ECF No. 49, PageID.762.) But West has not been properly substituted under Rule 25(a) and is therefore not yet the Plaintiff in this action.
Accordingly, the motion (ECF No. 49) is DENIED WITHOUT PREJUDICE for the reasons set forth in the Court's prior Order. (ECF No. 48.) Plaintiff's counsel must file a motion for substitution pursuant to Rule 25(a) on or before Friday, May 17, 2024. The motion must:
• Address whether Plaintiff's § 1983 claim survives his death under Michigan law, see Jackson v. City of Cleveland, 925 F.3d 793, 811 (6th Cir. 2019) (stating that “§ 1983 claims are subject to the forum state's survival rules for personal injury actions”);
• Explain how counsel has satisfied the service requirements under Federal Rule of Civil Procedure 25(a)(3); and
• Include a declaration, affidavit, or engagement letter demonstrating that Taylor West, personal representative of Plaintiff's estate, has retained Plaintiff's counsel to pursue any surviving interest Plaintiff's estate retains in this action.
Failure to comply with these instructions may result in sanctions.
IT IS SO ORDERED.
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court's ECF System to their respective email or first-class U.S. mail addresses disclosed on the Notice of Electronic Filing on April 29, 2024.