Bearup v. Cintas Corporation

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION - CINCINNATI THOMAS BEARLUP, JR. et al., : Case No. 1:21-cv-151 Plaintiffs, Judge Matthew W. McFarland

v : CINTAS CORP. NO. 2, Defendant.

ORDER OF DISMISSAL net This matter is before the Court on Defendant's Motion to Dismiss Plaintiff Andrea

Carter (Doc. 105.). On May 3, 2024, Plaintiffs’ counsel filed a Suggestion of Death (Doc. 92) notifying the Court that Plaintiff Andrea Carter had passed away and that her

successor or representative was not prepared to file a motion for substitution. At this

time, no successor or representative of Plaintiff Carter has filed a motion for substitution, and over 260 days have passed since Plaintiffs’ counsel filed the Suggestion of Death

(Doc. 92.) Federal Rule of Civil Procedure 25(a) provides that “[i]f a party dies and the claim

is not extinguished, the court may order substitution of the proper party.” Fed. R. Civ. P.

25(a). The rule further provides that “[i]f the motion [to substitute] 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. When a party files a suggestion of death and serves it on all other

parties, the 90-day clock begins running. Premoh v. City of Cincinnati, Case No. 1:15-cv-

265, 2016 WL 2858900, at *5 (S.D. Ohio May 13, 2016). If no motion to substitute a party is

filed within 90 days of the suggestion of death, then Rule 25 mandates that the court

dismiss the action. Id. Accordingly, as no motion to substitute has been filed within 90 days since

Plaintiffs’ counsel filed the Suggestion of Death (Doc. 92), the Court GRANTS

Defendant’s Motion to Dismiss Plaintiff Andrea Carter (Doc. 105.) Plaintiff Andrea

Carter’s claims are DISMISSED for failure to substitute a party pursuant to Fed. R. Civ.

P. 25(a)(1). IT IS SO ORDERED.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO Wath, Wedd BN JUDGE MATTHEW W. McFARLAND