WOODBECK

v.

ROSIE'S CAFE & GRILL, INC.

ROSIE’S CAFE & GRILL, INC., JOANNE FITZGERALD and IRVING GAVIN,

Defendants. /

ORDER1

Before the Court is a sua sponte review of the case. Defendant Irving Gavin passed away on February 2. On February 12, his father (Eugene Gavin) filed a letter informing everyone of Irving’s death. (Doc. 18). The letter suggested Eugene might become personal representative of Irving’s estate— explaining he was not probating the estate at that time because its assets were not enough to cover funeral costs. That letter also certified Eugene mailed it to all parties. Because it was in the form of a letter, the Court struck the filing

dismissal or substitution. See Fed. R. Civ. P. 25(a).” No party filed anything. Rule 25 governs the procedure for a party’s death during litigation. When “the claim is not extinguished” and the other parties wish to pursue it, someone must move for substitution. Id. “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. The ninety-day clock starts after “a suggestion of death” is “filed with the court and served on a personal representative of the deceased party.” Lizarazo v. Miami-Dade Corr. & Rehab.

Dep’t, 878 F. 3d 1008, 1009 (11th Cir. 2017). Eugene—who appears likely to be the personal representative—filed the suggestion of death on February 12. The Court concludes the clock started ticking that day (i.e., more than ninety days ago). See Jaudon v. Sasser, No. 2:17-cv-118, 2019 WL 1091002, at *2 (S.D. Ga. Mar. 8, 2019) (noting even if personal representative not yet established, must make a good-faith effort to serve nonparties with interest in estate).² Yet neither Plaintiff nor the other Defendants acted. But service on parties is necessary too. Atkins v. City of Chicago, 547

F. 3d 869, 870 (7th Cir. 2008). Rule 5 requires service on a party’s lawyer (if

While phrased in absolute terms, Rule 25 is somewhat flexible and district courts may extend the deadlines. Lizarazo, 878 F. 3d at 1011. Despite the Court’s guidance for the parties to follow Rule 25, nobody tried to substitute Irving or moved for more time. Considering this, along with the fact this action

will continue against the other Defendants, the Court will not extend the substitution period. See id. at 1011-12; McGuinnes, 289 F.R.D. at 362-63. And the claim as to Irving is dismissed. Given this conclusion, the Court denies the pending motion for default

judgment without prejudice. That motion seeks judgment against all Defendants, including Irving, jointly and severally. With Irving dismissed, Plaintiff can refile an amended motion to account for the development. Accordingly, it is now

ORDERED: (1) The claim against Defendant Irving Gavin is DISMISSED. (2) Plaintiffs Motion for Entry of Default Final Judgment (Doc. 16) is DENIED without prejudice. DONE and ORDERED in Fort Myers, Florida on May 19, 2021.

, Lh platrathe 7

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record