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Lopez v. Correctional Medical Services

October 7, 2010

JOSE LOPEZ, PLAINTIFF,
v.
CORRECTIONAL MEDICAL SERVICES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Noel L. Hillman, U.S.D.J.

OPINION & ORDER

This matter having come before the Court on Plaintiff's Motion to Substitute Parties [140]; and

It appearing that Plaintiff Jose Lopez died from complications of liver disease on September 1, 2008; and

The Court noting that on January 5, 2010, Plaintiff's counsel filed a Notice of Motion informing this Court of Plaintiff's death; and

The Court further noting that pursuant to Fed. R. Civ. P. 25(a)(1), an "action by or against [a] decedent must be dismissed," if a "motion is not made within 90 days after service of a statement noting the death" for substitution of the "decedent's successor or representative"; and

The Court further noting that only Plaintiff's successor or representative may substitute into this action under Fed. R. Civ. P. 25(a)(1); and

It further appearing that following an Order to Show Cause, dated March 11, 2010, Plaintiff's counsel, on March 19, 2010, filed a Motion to Substitute Parties, seeking to substitute Plaintiff's mother, Carmen Minney; and

The Court further noting that Plaintiff's counsel conceded that "there may be a challenge to her appointment," and that Plaintiff's estate has not yet been opened; and

It further appearing that on August 12, 2010, this Court ordered "Plaintiff's counsel to submit an affidavit and supporting documentation demonstrating Ms. Minney's legal bona fides as successor or representative of Plaintiff's estate"; and

It further appearing that Plaintiff's family resolved all familial issues with respect to Ms. Minney acting as Administratrix of the Estate by deciding to appoint Plaintiff's son, Jose Miguel Lopez, as Administrator of the Estate; and

The Court finding that on August 23, 2010, the Surrogate of Cumberland County, New Jersey granted Jose Miguel Lopez Administration Ad Prosequendum of decedent, Plaintiff Jose Lopez; and

The Court further finding that per documentation timely submitted on September 3, 2010, that Jose Miguel Lopez is the legal bona fide successor or representative of Plaintiff's estate; and

The Court further noting that Plaintiff's counsel could have been more diligent with informing the Court of Plaintiff's death and moving for substitution; and

The Court further finding that the 90-day time period under Fed. R. Civ. P. 25(a)(1) does not commence until the party's death is "formally suggested on the record by the filing and service of a written statement of the fact of death," Hawes v. Johnson & Johnson, 940 F. Supp. 697, 699 (D.N.J. 1996) (quoting Blair v. Beech Aircraft Corp., 104 F.R.D. 21, 22 (W.D. Pa. 1984), aff'd, 787 F.2d 580 (3d Cir.1986); see McKenna v. Pac. Rail Serv., 32 F.3d 820, 836 (3d Cir. 1994) (noting that upon a party's death "ideally his . . . attorney will file a 'suggestion ...


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