United States District Court, S.D. West Virginia, Huntington Division
C. CHAMBER'S, UNITED STATES DISTRICT JUDGE
before the Court is Defendant Santander Bank, N.A.'s
Motion for Summary Judgment (ECF No. 28). In its motion,
Defendant Santander requests that this Court dismiss Count V
of Plaintiff's complaint. Additionally, Defendant
Santander argues that Plaintiff's remaining claims
against the other defendant(s) should be dismissed for
failure to comply with Rule 25 of the Federal Rules of Civil
Procedure. Def.'s Mem. in Supp. of Mot. for Summ.
J., ECF No. 29, at 9-10. In response to this motion,
Plaintiff conceded that she cannot maintain Count V of her
complaint against Defendant Santander. Pl.'s Resp. to
Mot. for Summ. J., ECF No. 33, at 1-2. Accordingly, as
Plaintiff has recognized that she lacks the evidentiary
foundation to maintain Count V of her complaint, the Court
GRANTS, IN PART, Defendant Santander's
Motion for Summary Judgment and DISMISSES
Count V of Plaintiff's complaint.
with the dismissal of Count V, two issues remain: (1)
Defendant Santander's contention that Plaintiff's
suit should be dismissed for failure to comply with Rule 25;
and (2) whether Defendant Santander can be kept as a party to
Plaintiff's action, given that all of Plaintiff's
claims against Defendant Santander have been dismissed. As
explained below, the Court disagrees with Defendant Santander
regarding the first issue; and regarding the second issue,
the Court believes Plaintiff has not sufficiently fleshed-out
her argument for how Defendant Santander can remain part of
this suit where no claims remain against it. Therefore,
Plaintiff must provide authority for the proposition that a
court can keep a party in an action when all the claims
against that party have been dismissed.
first issue, Rule 25 provides the procedure for substituting
another party upon the death of an existing party to a suit.
The rule provides that a motion for substitution of a
deceased party may be made by any party to the action.
Fed.R.Civ.P. 25(a)(1). If that motion for substitution
“is not made within 90 days after service of a
statement noting the death, ” the action must be
dismissed. Id. Only the proper filing and service of
the statement noting death triggers the 90-day period for
filing a motion for substitution. Fariss v. Lynchburg
Foundry, 769 F.2d 958, 962 (4th Cir. 1985). The
statement noting death is a formal filing that must be in
writing and served on all parties. See United States v.
Currency $11, 331, 482 F.Supp.2d 873, 885 (E.D. Mich.
2007). That the parties know about the death of a party, or
the mere reference to a party's death in pleadings, is
not sufficient to qualify as a statement noting death.
See Grandbouche v. Lovell, 913 F.2d 835, 836-37
(10th Cir. 1990). Thus, neither the parties' knowledge of
the death, nor the mentioning of death in pleadings will
trigger the 90-day window for filing the motion to
substitute. Id. Additionally, there is no time limit
for filing the statement noting death. See Currency $11,
331, 482 F.Supp.2d at 885.
Santander contends that Plaintiffs suit should be dismissed
because more than 90 days have elapsed since Ms. Morris
passed away. Def.'s Mem. in Supp. of Mot. for Summ.
J., at 9-10. Defendant Santander, however, misconstrues
the requirements for a court to dismiss a claim under Rule
Court's knowledge, no party has filed a statement noting
death. As no party has filed a statement noting
death, the 90-day clock under Rule 25 has not begun to run.
Therefore, the Court rejects Defendant Santander's Rule
25 argument and DENIES, IN PART, Defendant
Santander's Motion for Summary Judgment regarding its
request for dismissal under Rule 25.
Plaintiff has suggested that even though no claims remain
against Defendant Santander, Defendant Santander should not
be dismissed from this suit. Pl.'s Resp. to Mot. for
Summ. J., at 3 n.1. Because Plaintiff cites no authority
for this maneuver, the Court DIRECTS
Plaintiff to file supplementary briefing on this point,
providing legal authority for keeping a party in an action
where no remaining claims are directly asserted against that
party. The Court DIRECTS Plaintiff to file
its supplementary brief by Friday,
November 17, 2017. Defendant Santander may
respond to Plaintiffs supplementary brief, if it so choses.
Defendant Santander would have to file its response by
Wednesday, November 22, 2017.
Court DIRECTS the Clerk to send a copy of
this Order to counsel of record and any unrepresented
 The parties at times refer to the
“statement noting death” as a “suggestion
of death.” These terms are synonymous, as
“suggestion of death” was the terminology used
under prior versions of Rule 25. Fed.R.Civ.P. 25(a) advisory
committee's note to 1963 amendment.
 Defendant Santander, in its Reply,
suggests that Plaintiff “waited until after Santander
filed its Motion for Summary Judgment . . . to file a formal
notice of death.” Def.'s Reply, ECF No.
35, at 2. But, the ...