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Green v. Grand Trunk Western Railroad Inc.

United States District Court, E.D. Michigan, Southern Division

June 20, 2018

JAMES GREEN, Plaintiff,
v.
GRAND TRUNK WESTERN RAILROAD, INC., Defendant.

          Paul D. Borman District Judge

          REPORT AND RECOMMENDATION

          MONA K. MAJZOUB UNITED STATES MAGISTRATE JUDGE

         Plaintiff James Green commenced this pro se action against his former employer, Defendant Grand Trunk Western Railroad, Inc., alleging that he was fired from his long time employment as a locomotive engineer in retaliation for his request for medical treatment, in violation of the Federal Rail Safety Act, 49 U.S.C. § 20109 (“FRSA”). (Docket no. 1.) The matter has been referred to the undersigned for all pretrial proceedings, including a hearing and determination of all non-dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(A) and/or a report and recommendation on all dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket no. 54.) On March 20, 2018, pursuant to Rule 25 of the Federal Rules of Civil Procedure, Defendant filed a suggestion of death of the Plaintiff. (Docket no. 56.)

         I. RECOMMENDATION

         For the reasons that follow, it is recommended that the Court dismiss Plaintiff's complaint in its entirety pursuant to Rule 25 of the Federal Rules of Civil Procedure.

         II. REPORT

         A. Background

         Defendant is a freight rail carrier. (Docket no. 6, p. 11.) On the night of April 16, 2012, at approximately 11:00 p.m., Plaintiff was called in to perform his job as a locomotive engineer at the railroad terminal in Flint, Michigan. (Docket no. 1, p. 2.) Not long after he arrived, members of Defendant's management team called Plaintiff into a conference room and asked him to submit to a breathalyzer test. (Id. at 2-3.) According to Plaintiff, he immediately began experiencing chest pain and dizziness and therefore requested an ambulance. (Id. at 3.) He was then taken to a hospital and never took the breathalyzer test. He was “removed from service” that night, and later, after failing to submit documentation establishing an actual medical emergency, he was fired. (Docket no. 6-2, p. 2.)

         Plaintiff filed the instant complaint on May 3, 2016, alleging that he was fired for seeking medical treatment in violation of § 20109(c) of the FRSA. (Docket no. 1.)

         On September 20, 2017 a woman identifying herself as the daughter of Plaintiff James Green contacted defense counsel to advise that Plaintiff died on September 17, 2017. (Docket no. 52, p. 9 n.1.) On March 20, 2018, Defendant filed a suggestion of death pursuant to Rule 25. (Docket no. 56.) Defendant mailed a copy of that suggestion to the last known address of Plaintiff, which was the same address as the expected executor/administrator for the estate, Jonel Green. (Id.) Defendant requested that Plaintiff's complaint be dismissed pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure if no motion to substitute was filed within 90 days of the suggestion of death. (Id.)

         B. Analysis

         Rule 25 of the Federal Rules of Civil Procedure establishes a protocol for substitution after the death of a party, as follows:

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 ...

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