Wheatt v. City of East Cleveland

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ------------------------------------------------------------------ DERRICK WHEATT, , : CASE NOS. 1:17-CV-377 & : 1:17-CV-611 (consolidated) Plaintiffs, : : vs. : OPINION & ORDER : [Resolving Doc. 396] CITY OF EAST CLEVELAND, , : : Defendants. : ------------------------------------------------------------------

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

On November 15, 2018, Plaintiffs Derrick Wheatt, Laurese Glover, and Eugene Johnson won a jury verdict against Defendants Vincent Johnstone and Michael Perry.1 Defendant Michael Perry later died on December 9, 2018.2 Plaintiffs now move to substitute Karen Perry, as Executor of Michael Perry’s Estate, in place of Michael Perry.3 Defendant City of East Cleveland opposes;4 Plaintiffs reply.5 The Court grants Plaintiffs’ motion because the requested substitution complies with the relevant Federal Rule of Civil Procedure requirements. I. Legal Standard If a party dies and the claim is not extinguished, the Court may order substitution of the proper party.6 After the filing and service of a death notice, any party or the decedent's successor or representative may move for substitution.7 If the motion is not made within

1 Doc. 359. 2 Doc. 393. 3 Doc. 396. 4 Doc. 398; Doc. 401. 5 Doc. 399. 6 Fed. R. Civ. P. 25(a)(1). 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.8 Rule 25(a) requires two affirmative steps to trigger the running of the 90-day deadline for the substitution motion.9 First, a death notice must be made upon the record.10 Second, the death notice must be served upon the parties, as provided in Rule 5, and upon nonparties, as provided in Rule 4.11 II. Analysis Plaintiffs’ motion complies with the Rule 25(a) procedural requirements. Plaintiffs

filed the death notice on July 9, 2019.12 Plaintiffs served the notice on all Parties in accordance with Rule 5 and on nonparty Karen Perry in accordance with Rule 4.13 Within 90 days of filing and serving the notice, Plaintiffs moved for substitution.14 Defendant East Cleveland argues that Plaintiffs’ motion to substitute should be denied as untimely. It contends that the 90-day deadline commenced December 19, 2018, when East Cleveland referenced Perry’s death in a court filing.15 Defendant’s argument is unpersuasive. As described above, Rule 25 gives the 90-

day deadline triggering requirements. A notice must be (1) filed with the court and (2) served on all parties in accordance with Rule 5 and on all nonparties in accordance

8 9 , No. 11-11163, 2012 WL 5258216, at *4-5 (E.D. Mich. Oct. 23, 2012). 10 Fed. R. Civ. P. 25(a)(3); , No. CV 5:17-161-KKC, 2018 WL 1474072, at *4 (E.D. Ky. Mar. 26, 2018). 11 Fed. R. Civ. P. 25(a)(3); , 2018 WL 1474072, at *4. 12 Doc. 393. 13 14 Doc. 396. 15 Doc. 401 (citing Doc. 374 at 2). with Rule 4.16 Defendant’s December 2018 reference to Michael Perry’s death did not satisfy the service requirement and therefore did not trigger the 90-day deadline. III. Order The Court GRANTS Plaintiffs’ motion to substitute Karen Perry, as Executor of Michael Perry’s Estate, as the Defendant in place of Michael Perry. IT IS SO ORDERED. Dated: October 22, 2019 JAMES S. GWIN UNITED STATES DISTRICT JUDGE

16 Fed. R. Civ. P. 25(a)(3); , 2018 WL 1474072, at *4.