United States District Court, D. South Carolina, Orangeburg Division
February 19, 2015
John Goodwin, Plaintiff,
South Carolina State University; Small Business Development Centers; Michelle Abraham; Barbara Adams; and Dolline Tucker, Defendants.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, Magistrate Judge.
This employment case comes before the court on the Suggestion of Death of John Goodwin ("Plaintiff"). This case has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.).
On November 7, 2014, Plaintiff's counsel, Aaron Vernon Wallace, Esq., filed a Notice of Suggestion of Death ("Notice"), indicating that Plaintiff was deceased. [ECF No. 19]. On November 10, 2014, the undersigned directed Mr. Wallace to serve Plaintiff's personal representative or any successors or other representatives of Plaintiff with the Notice. [ECF No. 20]. On November 24, 2014, Mr. Wallace submitted a reply, indicating that he hired a process server to serve Plaintiff's son, Michael Goodwin, ("Mr. Goodwin"), at his last known address in Arizona. [ECF No. 24]. Mr. Wallace states that the process server was unable to serve the Notice on Mr. Goodwin because he had moved from the lastknown address. However, Mr. Wallace noted that he contacted Mr. Goodwin by telephone and email. Id. ; ECF No 24-3. Mr. Goodwin replied by email and attached a letter indicating that he "authorize[d] dismissal of the case involving my late father John Goodwin." [ECF No. 24-4 at 3].
Pursuant to Fed.R.Civ.P. 25(a)(1), "if a party dies and the claim is not extinguished, the court may order substitution of the proper party." The rule states that "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." Id.
No party having filed a motion for substitution within 90 days of the actual notice, the undersigned hereby recommends this case be dismissed without prejudice pursuant to Fed.R.Civ.P. 25(a)(1).
IT IS SO RECOMMENDED.