UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

AFS/IBEX, A DIVISION OF 

METABANK, 

 

 Plaintiff, 

 

v. 

 Case No.: 15-cv-11409 

Honorable Gershwin A. Drain

TRAVELERS PROPERTY 

CASUALTY COMPANY OF 

AMERICA, et al., 

 

 Defendants. 

___________________________/ 

 

ORDER DENYING MOTION FOR SUBSTITUTION [#186] WITHOUT 

PREJUDICE

This matter was scheduled to commence trial on August 28, 2017. Prior to 

the commencement of trial, Defendants’ attorney informed the Court that 

Defendant Keith Larson had passed away on the morning of August 28, 2017. The 

trial was adjourned so that the decedent’s wife, Defendant Karen Larson, could 

commence probate proceedings and be appointed as personal representative for her 

husband’s estate. 

 Assignees/Cross-Claimants now move for substitution. Defendant Karen 

Larson has failed to file a Response to the instant motion, however at a status 

conference held on October 17, 2017, counsel for Defendant Karen Larson 
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indicated that he had no objection to the present motion. For the reasons that 

follow, the Court will deny the present motion without prejudice. 

 Rule 25 governs the substitution of parties. It states in relevant part that: 

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. 

Fed. R. Civ. P. 25(a)(1). Plaintiffs seek to substitute Karen Larson for the estate of 

Keith Larson. While the Court does not disagree that substitution is warranted 

under the circumstances herein, it cannot grant the Assignees/Cross-Claimants’ 

requested relief because several conditions have not been followed in accordance 

with Rule 25. 

 Specifically, a formal, written statement noting death has not been filed and 

properly served under Rules 4 and 5. See Tolliver v. Leach, 126 F.R.D. 529, 530-

31(W.D. Mich. 1989); Kasting v. American Family Mut. Ins. Co., 196 F.R.D. 595, 

600 (D. Kan. 2000); 6-25 Moore’s Federal Practice-Civil §25-13 (2017). “Oral 

notice, even on the record in court or in a deposition, is insufficient.” Tolliver, 126 

F.R.D. at 530 (citing Dolgow v. Anderson, 45 F.R.D. 470, 471 (E.D.N.Y. 1968)). 

 Moreover, Rule 25(a)(3) requires that “[a] motion to substitute, together 

with a notice of hearing be served on the parties as provided in Rule 5 and on 
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nonparties as provided in Rule 4. A statement noting death must be served in the 

same manner.” Fed. R. Civ. P. 25. See Atkins v. City of Chicago, 547 F.3d 869, 

873 (7th Cir. 2008)(“[N]onparties with a significant financial interest in the case, 

namely the decedent’s successors (if his estate has been distributed) or personal 

representative (it has not been), should certainly be served.”). 

 Accordingly, the Court will require Assignees/Cross-Claimants to remedy 

the issues with respect to substitution and they may then renew their motion for 

substitution. 

 SO ORDERED. 

Dated: October 27, 2017 /s/Gershwin A. Drain 

 GERSHWIN A. DRAIN 

 United States District Judge 

CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record 

by electronic and/or ordinary mail. 

/s/ Tanya Bankston 

Deputy Clerk