Pennino v. Reilly-Benton Company, Inc. ( 2022 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA PHYLLIS PENNINO, ET AL. CIVIL ACTION VERSUS NO. 21-363 REILLY-BENTON COMPANY, INC., ET AL. SECTION “B”(5) ORDER AND REASONS Considering defendant Hyster-Yale Group, Inc. (“Hyster- Yale”)’s unopposed1 motion to dismiss Albert L. Bossier, Jr.’s cross claims (Rec. Doc. 255), IT IS ORDERED that the motion is GRANTED, dismissing Albert L. Bossier, Jr.’s claims against Hyster-Yale. Federal Rule of Civil Procedure 25(a)(1) provides: 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). Here, Bossier, Jr. died on November 14, 2021. Rec. Doc. 96; see also Cortez v. Lamorak Ins. Co., No. 20- 2389, 2022 WL 1595837, at *1 (E.D. La. May 19, 2022). On January 7, 2022, Bossier, Jr.’s counsel filed a suggestion of death into the record of this case, which was electronically served to all counsel of record. Rec. Doc. 96. More than ninety days have passed 1 No objection to the motion was filed in accordance with the Eastern District of Louisiana Local Rule 7.8. See LR 7.8 (requiring each party opposing a motion to “file and serve a memorandum in opposition to the motion with citations of authorities no later than eight days before the noticed submission date”). since service of Bossier, Jr.’s suggestion of death, and no motion for substitution has been made. See Rec. Doc. 96. Accordingly, pursuant to Rule 25(a)(1), the Court must dismiss Bossier, Jr.’s cross claims against Hyster-Yale. See Fed. R. Civ. P. 25(a)(1); Rec. Doc. 14-2 at 128-139; Cortez, 2022 WL 1595837, at *2 (dismissing Bossier, Jr.’s claims under identical circumstances); Sampson v. ASC Indus., 780 F.3d 679, 681 (5th Cir. 2015) (acknowledging that after “service of the statement noting death, a motion for substitution of the proper party must be made within ninety days or the action must be dismissed”). New Orleans, Louisiana this 27th day of July, 2022 ___________________________________ SENIOR UNITED STATES DISTRICT JUDGE