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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NICHOLAS REYNOLDS,

Plaintiff, Civil Action No.

 08-CV-14909

vs.

 PAUL D. BORMAN

CITY OF DETROIT and DETROIT POLICE UNITED STATES DISTRICT JUDGE

OFFICER DARRYL RANDALL,

Defendants.

______________________________________/

OPINION AND ORDER 

(1) DENYING DEFENDANT RANDALL’S MOTION TO DISMISS,

(2) GRANTING PLAINTIFF’S EX PARTE MOTION TO AMEND CASE CAPTION, 

(3) DENYING AS MOOT PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT, 

(4) CANCELLING UPCOMING HEARING, and

(5) REVISING SCHEDULING ORDER

I. INTRODUCTION

This case charges in the first count a civil rights violation under 42 U.S.C. § 1983 with a

pendant state law assault and battery claim in count two. Plaintiff Nicholas Reynolds alleges that

he was assaulted and battered by Defendant Detroit Police Officer Darryl Randall while being

processed, following arrest on domestic violence charges. 

This action was originally brought in Wayne County Circuit Court on October 28, 2008, and

timely removed to this Court on November 24, 2008. 

The unpaginated “Complaint and Demand for Jury Trial,” consisting of three pages, lists as

Defendant “Detroit Police Officer Darryl Randall.” However, the initial paragraph states that the

Complaint is “against Officer Darryl Randall and the Detroit Police Department.” Since the

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 The Court will also decide Plaintiff’s Motion for Default Judgment without oral

argument pursuant to E.D. Mich. LR 7.1(e)(2).

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initiation of this case, both Plaintiff Reynolds and Defendant Randall have passed away under

circumstances not related to this case.

Plaintiff’s counsel states that an estate was established on behalf of Plaintiff on April 15,

2009, and he has filed documentation establishing that former state judge James C. McCann has

been appointed personal representative of Plaintiff’s estate. 

On December 15, 2009, Defendant City of Detroit filed a Motion to Dismiss Detroit Police

Officer Darryl Randall, arguing that the claims against Defendant Randall must be dismissed

because neither party has timely moved for substitution of a proper party for the individual

defendant following his death. Defendant asserts “[t]hat pursuant to FRCP 25(a) the action against

Defendant Randall must be dismissed.”

On December 1, 2009, Plaintiff filed an “Ex Parte Motion to Amend Case Caption” from

“Nicholas Reynolds” to “the Estate of Nicholas Reynolds.” This filing does not address Defendant’s

motion regarding Plaintiff’s failure to substitute a proper party for the individual defendant.

The Court heard oral argument with respect to Plaintiff’s Ex Parte Motion to Amend Case

Caption on December 22, 2009, and the Court will decide Defendant City of Detroit’s Motion to

Dismiss without oral argument pursuant to E.D. Mich. LR 7.1(e)(2).1

 For the reasons that follow,

Defendant’s Motion to Dismiss will be denied, Plaintiff’s Ex Parte Motion to Amend Case Caption

will be granted, and Plaintiff’s Motion for Default Judgment will be denied as moot.

II. LAW

Fed. R. Civ. P. 25(a) governs substitution following the death of a party and reads, in

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pertinent part, as follows:

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.

(Emphasis added). As stated by Wright and Miller, “[a] motion for substitution must be made not

later than 90 days after service of a statement noting the death. If there is no motion for substitution

made within the 90-day period, Rule 25(a)(1) provides that the action ‘must be dismissed.’” 7C

CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND

PROCEDURE § 1955, pp. 679-680 (3d 2007) (footnote omitted). However, the treatise states:

[d]ismissal is not mandatory, despite the use of the word ‘must’ in the

amended rule . . . . [T]he court may extend the period for substitution if a

request is made before the expiration of the 90-day period. The court also

may allow substitution on motion made after the expiration of the 90-day

period on a showing that the failure to act earlier was the result of excusable

neglect, although an extension of time also may be refused if the court finds

the reasons for the delay to be inexcusable.

Id. at pp. 682-684 (footnote omitted).

III. ANALYSIS

The crucial issue in the present case is when the 90-day clock began ticking, if at all.

According to Wright and Miller,

the time does not run until the death is noted on the record by service of a

statement of the fact of death, and there is no particular time period within

which that statement must be made after the death occurs. The statement

noting the death must be in writing and identify the representative to be

substituted, and it must be served on the parties in accordance with the

procedures of Rule 5 and upon persons not parties in the manner provided in

Rule 4 for the service of a summons. 

Id. at pp. 676-678 (footnotes omitted). “The law is well settled that the Suggestion of Death must

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identify the successor or representative of the deceased.” Dietrich v. Burrows, 164 F.R.D. 220, 222

(N.D. Ohio 1995). See also Smith v. Planas, 151 F.R.D. 547, 549 (S.D.N.Y. 1993) (for suggestion

of death to be valid and invoke 90-day limit for filing of motion for substitution, it must identify

successor or representative who may be substituted for decedent). 

Plaintiff’s December 1, 2009, unpaginated Ex Parte Motion to Amend Case Caption reads,

in its entirety,

NOW COMES Plaintiff NICHOLAS REYNOLDS, by and through his

attorney LONGSTREET LAW FIRM and shows the Honorable Court as

follows:

1. That the within action was filed on October 28, 2008.

2. That on or about March 2009, Plaintiff Nicholas Reynolds was

murdered in the City of Detroit.

3. That on or about April 14, 2009 a probate estate was established on

behalf of Plaintiff Nicholas Reynolds in the Third Circuit Court,

Wayne County Michigan.

WHEREFORE Plaintiff prays that this Honorable Court enter an order

allowing Plaintiff to amend case caption to properly name the Plaintiff The

Estate of Nicolas [sic] Reynolds.

The one sentence, one page brief is captioned “Brief in Support of Motion to Compel Discovery.”

There is no “Motion to Compel Discovery.” The “Brief in Support” of Plaintiff’s motion reads, in

its entirety, “Plaintiff relies on Local Rule of Civil Procedure and case law in support of his Motion

to Amend Case Caption.” Plaintiff’s brief is definitely brief. It is also inept! There is no such thing

as “Local Rule of Civil Procedure,” and Plaintiff cites no case law to support the motion. 

Defendant City of Detroit’s response states in pertinent part:

3. The corresponding paragraph is neither admitted nor denied for the

reason that no proof of establishment of a probate estate was attached

to this Motion (Docket Number 24).

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4. That FRCP 15 provides a party may amend its pleading only with the

written consent of the opposing party or leave of the Court.

5. That concurrence in the motion to amend caption was not sought and

is being made long after Plaintiff’s counsel became aware of his

client’s death.

6. That pursuant to FRCP 25, Plaintiff’s motion is untimely because the

motion was not made within ninety (90) days of notice to Plaintiff’s

attorney that his client had died.

7. That Plaintiff’s Motion is improper because it appears to be a motion

to name an additional plaintiff rather than a motion for substitution

and because the motion does not state who the estate’s representative

is or will be.

8. That Plaintiff’s motion is undocumented, unsupported and untimely.

WHEREFORE, Defendant, City of Detroit, a municipal corporation,

respectfully requests that Plaintiff’s motion be denied in its entirety.

Defendant City of Detroit’s “Brief in Support,” which does not begin on a separate page as required

by E.D. Mich. LR 7.1(c)(1)(A), reads, in its entirety, as follows: “In support of its Response,

Defendant, CITY OF DETROIT, a municipal corporation, relies on FRCP 15, 25 and all other

applicable Court Rules.”

A. Discussion of Plaintiff’s Ex Parte Motion to Amend Case Caption

As noted supra, “[t]he law is well settled that the Suggestion of Death must identify the

successor or representative of the deceased.” Dietrich, 164 F.R.D. at 222. The first time in which

anyone “identif[ies] the representative to be substituted” for Plaintiff was on December 1, 2009,

when Plaintiff filed his Ex Parte Motion to Amend Case Caption. It was at this time when notice

was first given that Plaintiff’s estate would be substituted for Plaintiff. Because the 90-day clock

did not start ticking until, at the earliest, December 1, 2009, the same day on which Plaintiff filed

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his Ex Parte Motion to Amend Case Caption, the motion is timely and must be granted.

B. Discussion of Defendant City of Detroit’s Motion to Dismiss

Defendant City of Detroit’s Motion to Dismiss asks the Court to dismiss all claims asserted

against Defendant Randall because 90 days have elapsed since “notification of the individual

Defendant’s death.” However, as discussed above, notification of a party’s death is not the event

that triggers the 90-day clock. Rather, the triggering event is the filing of a suggestion of death,

which “must identify the successor or representative of the deceased.” See Dietrich, 164 F.R.D. at

222. No such document has been filed in the present case with respect to the substitution of

Defendant Randall. To date, no one has, to the Court’s knowledge, identified Defendant Randall’s

successor or representative. Therefore, the 90-day clock governing substitution of Defendant

Randall has not started ticking. Further, remaining is Plaintiff’s claim against the City of Detroit,

which Defendant’s pleading acknowledges as a separate defendant. See Defendant’s Motion to

Dismiss Police Officer Darryl Randall and Stipulation and Order to Provide Discovery.

IV. ORDER

For the reasons stated above,

IT IS ORDERED that Plaintiff’s Ex Parte Motion to Amend Case Caption [docket entry 24]

is granted. “The Estate of Nicholas Reynolds” is substituted as a party plaintiff for “Nicholas

Reynolds.” The Clerk of Court shall revise the case caption accordingly.

IT IS FURTHER ORDERED that Defendant City of Detroit’s Motion to Dismiss [docket

entry 26] is denied. The hearing currently scheduled for March 4, 2010, is cancelled.

IT IS FURTHER ORDERED that Plaintiff’s Motion for Default Judgment is denied as moot

because it was filed by an individual, now known to be deceased, who is no longer a party to this

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action.

IT IS FURTHER ORDERED that the scheduling order governing this matter is revised as

follows: Discovery cut-off: February 28, 2010; Dispositive motion cut-off: March 28, 2010.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: December 28, 2009

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

December 28, 2009.

s/Denise Goodine 

Case Manager

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