1

The Department of Corrections’ records list Robin Ramsey

and Priscilla Putsinovski as Plaintiff’s next of kin. (Doc. 35,

Ex. 2).

2

The Suggestion of death was previously served upon

nonparties Ramsey and Putsinovski via certified mail, which is

contrary to the requirements provided in Rule 25(a).

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ALLAN BUTLER, :

Plaintiff, :

vs. : CIVIL ACTION 07-00037-CG-B

R. ROBERTS, :

Defendants. :

REPORT AND RECOMMENDATION

This action is before the Court on Defendant R. Roberts’

Motion to Dismiss and Request for Stay (Doc. 35). In his motion,

Defendant seeks the dismissal of this action. Defendant asserts

that on September 2, 2009, he filed a Suggestion of Death, which

advised that Plaintiff Allan Butler died on August 24, 2009. (Doc.

26). Subsequent thereto, Defendant filed a Notice of Service,

which reflects that Priscilla Putsinovski and Robin Ramsey, who

have been identified as Plaintiff’s next of kin1

, were personally

served with the Suggestion of Death on January 19, 2010, and

January 20, 2010 respectively2. (Doc. 38). 

Rule 25(a) of the Federal Rules of Civil Procedure sets forth

the procedure to follow upon the death of a party to a lawsuit:

Case 1:07-cv-00037-CG-B Document 42 Filed 04/21/10 Page 1 of 5
2

(1) If a party dies and the claim is not thereby

extinguished, the court may order substitution

of the proper party. The 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 afer service of a statement

noting the death, the action by or against the 

decedent must be dismissed.

...

(3) A motion to substitute, together with a notice

of hearing, must be served on the parties as

provided in Rule 5 and on nonparties as provided

in Rule 4. A statement noting death must be 

served in the same manner. Service may be made in

any judicial district.

Fed. R. Civ. P. 25(a)

In his Motion, Defendant argues that this action should be

dismissed because no motion for substitution has been filed and

more than ninety days have elapsed since the filing of the

Suggestion of Death. “A clear reading of Rule 25(a)(1) reflects

that a suggestion of death must be filed on the record in a case

before the ninety-day period for filing a motion for substitution

begins.” Stanford v. Paulk, 2006 U.S. Dist. LEXIS 17512 (M.D. Ga.

Apr. 7, 2006). The second requirement necessary to trigger the

ninety-day clock is that the party filing the suggestion of death

must serve other parties and nonparties. Id.

A review of the record in this case reflects that Defendant

filed a Suggestion of Death on September 2, 2009, and that copies

of the Suggestion of Death were personally served upon Plaintiff’s

next of kin on January19, 2010, and January 20, 2010 respectively.

Case 1:07-cv-00037-CG-B Document 42 Filed 04/21/10 Page 2 of 5
3

(Doc. 38, Ex. 1). Thus, the ninety-day period set forth in Rule

25(a) was triggered on January 20, 2010. Although ninety days have

elapsed since personal service of the Suggestion of Death, the

record reflects that no request for substitution has been filed.

Accordingly, pursuant to Rule 25(a), Defendant’s Motion to Dismiss

is due to be granted. It is so recommended.

The attached sheet contains important information regarding

objections to this Report and Recommendation.

DONE this 21st day of April, 2010.

 

 /S/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 1:07-cv-00037-CG-B Document 42 Filed 04/21/10 Page 3 of 5
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The Court’s Local rules are being amended to reflect the

new computations of time as set out in the amendments to the

Federal Rules of Practice and Procedure, effective December 1,

2009.

4

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen days of the date of service of

this document, file specific written objections with the clerk of

court. Failure to do so will bar a de novo determination by the

district judge of anything in the recommendation and will bar an

attack, on appeal, of the factual findings of the magistrate judge.

See 28 U.S.C. § 636(b)(1)(c); Lewis v. Smith, 855 F.2d 736, 738

(11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir.

Unit B, 1982)(en banc). The procedure for challenging the findings

and recommendations of the magistrate judge is set out in more

detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within ten days3

 after being served

with a copy of the recommendation, unless a different

time is established by order. The statement of

objection shall specify those portions of the

recommendation to which objection is made and the basis

for the objection. The objecting party shall submit to

the district judge, at the time of filing the

objection, a brief setting forth the party’s arguments

that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It

is insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a

Case 1:07-cv-00037-CG-B Document 42 Filed 04/21/10 Page 4 of 5
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Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

 /S/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE 

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