Opinion
Nos. 1:99CV01072, 1:01CV00004.
November 24, 2004
MEMORANDUM ORDER
For the reasons stated below, the motion to dismiss the claims against Edwin Caldwell, Jr., pursuant to 25(a) of the Federal Rules of Civil Procedure [Doc. #83 in case number 1:99CV01072 and Doc. #56 in case number 1:01CV00004] is GRANTED.
I.
In December of 1999 Plaintiff Thomas Martin, appearing pro se, filed suit against Edwin Caldwell, Jr., among others. Defendants moved to dismiss all claims. After an Opinion and Order dated July 20, 2000, in which this Court dismissed some of Mr. Martin's claims, the claims that remain against Mr. Caldwell are (1) a 42 U.S.C. § 1981 claim for discrimination based on race and (2) four claims of libel under North Carolina law. On October 19, 2003, Mr. Caldwell died. On November 5, 2003, Defendants filed with the court and served on Mr. Martin a statement of Mr. Caldwell's death. On May 5, 2004, the executor of Mr. Caldwell's estate filed and served another statement of Mr. Caldwell's death. Mr. Martin has not moved for substitution of the executor of Mr. Caldwell's estate for Caldwell as a defendant in this case. Mr. Martin also has not filed a response to Defendant's Motion to Dismiss of Aug. 23, 2004. Mr. Martin did send a letter dated Aug. 31, 2003, to the clerk of this Court stating that he does not intend to oppose the Motion to Dismiss.
The suit filed in 1999 in which Mr. Caldwell was a defendant is case number 1:99CV01072. Mr. Martin subsequently filed suit against Chapel Hill Tennis Club in case number 1:01CV00004. The two cases were consolidated by an earlier Order of this Court.
II.
Federal Rule of Civil Procedure 25(a)(1) states:
If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party. . . . Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death . . ., the action shall be dismissed as to the deceased party. As the language of the rule makes clear, a court must dismiss a claim when the motion for substitution is not made within the ninety day period. See Hofheimer v. McIntee, 179 F.2d 789 (7th Cir. 1950), cert. denied, 340 U.S. 817 (1950) (calling 25(a) a "mandate to the court to dismiss"); see also Russell v. City of Milwaukee, 338 F.3d 662, 663 (7th Cir. 2003) (affirming district court's dismissal of case with prejudice when substitution motion was not made under 25(a)); Weil v. Investment/Indicators Research Mgmt., 647 F.2d 18, 21 n. 5 (9th Cir. 1981) (noting that claims against deceased party should have been dismissed when substitution motion was not made under 25(a)). Federal Rule of Civil Procedure 6(b) gives a court discretion to enlarge the amount of time allowed by a rule even after that time period has elapsed "when the failure to act was the result of excusable neglect."
Defense counsel complied with 25(a)(1) in service of the Statement of Death. In fact, the May 5, 2004, Statement was not necessary under 25(a), but was served, according to Defendant, to ensure that Mr. Martin knew the identity of the executor of Mr. Caldwell's estate. Nevertheless, Mr. Martin never attempted to file a motion for substitution, and has not made a motion under Fed.R.Civ.P. 6(b) to enlarge the ninety-day period. Indeed, he stated in his Aug. 31, 2004, letter that he does not intend to pursue against Mr. Caldwell's "heirs" the claims he originally filed against Mr. Caldwell and does not wish to oppose Defendant's motion. The claims against Mr. Caldwell must accordingly be dismissed.
III.
Because a Rule 25(a) motion for substitution was not made, the claims against Mr. Caldwell must be dismissed, and Defendants' Motion to Dismiss is GRANTED.