Opinion
C/A 3:23-387-MGL-SVH
07-30-2024
Laura B. Lenski, Plaintiff, v. South Carolina Department of Mental Health, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Plaintiff brought this case alleging employment discrimination by Defendant. Pursuant to 28 U.S.C. § 636(b)(1) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), this case was referred to the undersigned for all pretrial proceedings. This matter comes before the court on the failure of any party to file a timely motion for substitution after a Suggestion of Death was filed.
On February 8, 2024, Plaintiff's counsel filed a notice of Suggestion of Death of plaintiff Laura B. Lenski. [ECF No. 19]. Pursuant to Fed.R.Civ.P. 25(a)(1), “if a party dies and the claim is not extinguished, the court may order substitution of the proper party.” The rule states that “a motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.” Id. “In order to commence the running of the ninety-day period, the suggesting party must personally serve the suggestion of death on the decedent's personal representative, if appointed, or on the successors or representatives of the decedent.” Brooks v. Arthur, No. 6:08-cv-28, 2011 WL 1212254, *1 (W.D.Va. Mar. 30, 2011) (citing Fariss v. Lynchburg Foundry, 769 F.2d 958, 961-62 (4th Cir. 1985) (“Personal service of the suggestion of death alerts the nonparty to the consequences of death for a pending suit, signaling the need for action to preserve the claim if so desired.”)). In Fariss, the Fourth Circuit found that service of the suggestion of death on the decedent's attorney alone was insufficient. Fariss, 769 F.2d at 962.
Plaintiff's counsel filed a certificate of service of the Suggestion of Death on February 26, 2024. [ECF No. 36]. Pursuant to Plaintiff's counsel's motions, the undersigned extended the deadline for moving for substitution on May 20, 2024, and June 12, 2024, permitting a motion for substitution to be filed by July 11, 2024. [ECF Nos. 38, 40]. The deadline has passed and no one has filed a motion for substitution in this case. Therefore, the undersigned recommends this case be dismissed pursuant to Fed.R.Civ.P. 25.
Chambers separately emailed all counsel of record to inquire as to the status of the case and was advised that Plaintiff's family declined to move to be substituted.
If the district judge accepts this recommendation, the pending motion for summary judgment [ECF No. 25] will be rendered moot.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).