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Rice v. Hathaway

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


September 24, 2008

GARY RICE, PLAINTIFF,
v.
JODY HATHAWAY AND JOSEPH W. SOMMER, DEFENDANTS.

The opinion of the court was delivered by: Michael J. Reagan United States District Judge

ORDER

REAGAN, District Judge

On September 19, 2008, Defendants filed Suggestion of Death upon the record as to Plaintiff Gary Rice and a motion to stay (Docs. 13, 14).

Federal Rule of Civil Procedure 25(a)(1) provides as follows:

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 or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any judicial district. 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 facts of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party. FED.R.CIV.P. 25(a)(1).

Where the deceased party is a pro se prisoner, it is proper for the surviving party to serve the statement of death upon the deceased prisoner at his last known correctional facility address, in accordance with Federal Rule of Civil Procedure 5. SeeFED.R.CIV.P. 5(b)(2)(B). By executing service in this manner, the surviving party triggers the 90-day period in which an appropriate party may move for substitution.

On September 19, 2008, Defendants properly filed Suggestion of Death upon the record and mailed a copy of it to Rice's last known address at the Stateville Correctional Center. As a result, the 90-day limitations period to file a motion for substitution began to run from the date the Suggestion of Death was filed - September 19, 2008. In addition, the Court will stay all proceedings in this case, until further notice from the Court. The parties are directed to keep the Court apprised of any developments in the case through the filing of appropriate motions or notices on the record.

For these reasons, the Court GRANTS Defendants' motion to stay (Doc. 14) and STAYS all proceedings in this matter, pending the Court's resolution of Defendants' Suggestion of Death.

IT IS SO ORDERED.

20080924

© 1992-2008 VersusLaw Inc.



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