United States District Court, N.D. Indiana, South Bend Division
DUSTIN E. McGUIRE, Plaintiff,
JOSEPH THOMPSON, Defendant.
OPINION AND ORDER
DEGUILIO JUDGE UNITED STATES DISTRICT COURT
E. McGuire, a prisoner without a lawyer, filed a lawsuit
against Dr. Joseph Thompson. ECF 2. Because Dr. Thompson
failed to answer the complaint or otherwise defend himself,
he was found to be in default. ECF 12, 13. McGuire
subsequently filed a motion for default judgment, which
remains pending. ECF 17. However, the court received notice
in another case that Dr. Thompson passed away on May 5, 2019,
see Cook v. Neal, 3:18-CV-836-JD-MGG, ECF 104, so a
Notice of Death was docketed. ECF 23. McGuire has since filed
a motion for substitution and a request for a ruling on both
of his pending motions. ECF 28, 31.
Rule of Civil Procedure 25(a)(1) provides, in relevant part,
that “[i]f a party dies and the claim is not
extinguished, the court may order substitution of the proper
party.” Rule 25(a)(1) also requires a motion for
substitution by any party or the decedent's successor or
representative to be filed “within 90 days after
service of a statement noting the death.” If a motion
for substitution is not timely filed, “the action by or
against the decedent must be dismissed.” Id.
Here, the Notice of Death was filed on July 25, 2019, and the
instant motion for substitution was filed within ninety days.
McGuire's constitutional claim against Dr. Thompson,
raised pursuant to 42 U.S.C. § 1983, would survive his
death under the Indiana survivorship statute. See Bennet
v. Tucker, 827 F.2d 63, 67-68 (7th Cir. 1987); Ind. Code
§ 34-9-3-1. However, only a “proper party”
may be substituted for Dr. Thompson under Rule 25. Although
Rule 25 does not specifically identify who a proper party is,
it references successors and representatives. See Bertam
Music Co. v. P & C Enterprises, Inc., No.
09-CV-2253, 2011 WL 2633666, at *6 (C.D. Ill. July 5, 2011)
(“[G]enerally, the proper party for substitution is the
person who has the legal right and authority to defend
against the claims brought against the deceased
party.”) (citing Fariss v. Lynchburg Foundry,
769 F.2d 958, 962 (4th Cir. 1985)); see also Atkins v.
City of Chicago, 547 F.3d 869, 873 (7th Cir. 2008)
(noting that “the decedent's successors (if his
estate has been distributed) or personal representative (it
has not been)” should be considered). Moreover, the
Indiana substitution statute, which applies here, provides:
In instances where a cause of action was properly filed and
commenced against a decedent prior to the decedent's
death, the same shall be continued against the personal
representative or successors in interest of the deceased, who
shall be substituted as the party or parties defendant in
such action, and in such instance it shall not be necessary
for the claimant to file a claim as herein provided. In any
action thus continued the recovery, if any, shall be limited
as otherwise provided by law.
Code § 29-1-14-2. In other words, the Indiana statute
allows cases like this one to only be “continued
against the personal representative or successors in interest
of the deceased.” Id.
has requested that the court substitute Corizon Health,
Wexford, and the Indiana Department of Correction as
defendants for Dr. Thompson. McGuire notes that Dr. Thompson
worked for Corizon Health and Wexford within the Indiana
Department of Correction during the time period in which Dr.
Thompson allegedly delayed medical treatment for his broken
wrist. However, there is no indication that any of these
entities constitute a personal representative or successor in
interest of Dr. Thompson. Thus, McGuire's motion cannot
be granted as it currently stands.
in the interests of justice, the court will hold the motion
for substitution in abeyance and allow McGuire additional
time to determine whether there is a proper party to
substitute in this case that can be appended to the original
motion. Additionally, the motion for default judgment will be
denied with leave to refile if and/or when McGuire
substitutes a proper party.
these reasons, the court:
(1) DENIES the motion for default judgment with leave to
refile (ECF 17);
(2) HOLDS IN ABEYANCE the motion to substitute (ECF 28);
(3) DENIES AS MOOT the request for ruling (ECF 31);
(4) GRANTS Dustin E. McGuire until April 1, 2020, to
file a status report with regard to the identity of a proper