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Mary Pritchard, et al v. Hamilton Township Board of Trustees

November 15, 2011

MARY PRITCHARD, ET AL., PLAINTIFFS,
v.
HAMILTON TOWNSHIP BOARD OF TRUSTEES, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Chief Judge Susan J. Dlott

ORDER DENYING PLAINTIFFS' MOTION TO SUBSTITUTE

This matter is before the Court on Plaintiffs' Motion to Substitute the Estate of Frank Richardson for the Individual Claims Asserted Against Frank Richardson (doc. 77). Because Plaintiffs have failed to comply with requirements of Rule 25(a) of the Federal Rules of Civil Procedure, the motion will be DENIED.

I.

Named Defendant Frank Richardson, the former Chief of the Hamilton Township Police Department, died when this case was pending on appeal. Defendants Hamilton Township Board of Trustees, Lt. Phil Johnson, Lt. Jeff Braley, Officer Roger Gilbert, and Gayle Gilbert, filed a Statement Noting Death of Defendant Frank Richardson (doc. 71) in this Court on August 11, 2010. Defendants also filed a Suggestion of Death of Defendant Frank Richardson in the Sixth Circuit Court of Appeals on that same day. Pritchard v. Hamilton Twp. Bd. of Trustees, No. 09-4594, Doc. 006110704020 (6th Cir. Aug. 11, 2010). Defendants did not identify a successor or representative for Richardson in the notice of death filings.

Plaintiffs now have moved to substitute the Estate of Frank Richardson for the individual claims asserted against him. Defendants oppose the substitution on the grounds that Plaintiffs have failed to comply with Rule 25(a) of the Federal Rules of Civil Procedure. Defendants contend that the Motion to Substitute is untimely, that Plaintiffs failed to identify Richardson's successor or representative in the Motion, and that Plaintiffs failed to properly serve the Motion upon the successor or representative.

II.

Rule 25 of the Federal Rules of Civil Procedure spells out a procedure for the substitution of a new party upon the death of an existing party. The relevant rule provides:

a) Death.

(1) Substitution if the Claim Is Not Extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. 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. * * * *

(3) Service. A motion to substitute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule

4. A statement noting death must be served in the same manner. Service may be made in any judicial district.

Fed. R. Civ. P. 25.

III.

Both Plaintiffs and Defendants have failed to comply with Rule 25(a). First, Defendants failed to comply with Rule 25(a) because they did not identify the successor or representative of the deceased in the Statement Noting Death. See Wilcox v. Ohio Penal Indus., No. 1:07-cv-554, 2009 WL 4730223, at *2 (S.D. Ohio Dec. 4, 2009) ("The law is well settled that the [s]uggestion ...


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