United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANTS' MOTION TO DISMISS AND
GRANTING PLAINTIFF'S MOTION TO SUBSTITUTE
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
has sued individuals in the Wayne County Sheriff's
Office, employees of Wayne County Jail, and Wayne County
itself to recover for injuries she sustained when she fell
from the top bunk in her cell in Wayne County Jail on July
20, 2015. Complaint, ECF No. 1. Plaintiff filed her initial
Complaint on May 25, 2018. On July 20, 2018, she filed a
second Complaint without identifying the first case as a
potential companion. No. 18-12291, ECF No. 1. Defendant filed
a Motion to Consolidate and Dismiss the cases, which the
Court granted in part by consolidating the cases on January
15, 2019. ECF No. 11. That order designated this case number,
18-11671, as the lead case and directed Plaintiff to amend
her complaint and serve any defendants who had not yet been
served. Plaintiff filed her amended complaint on January 17,
2019. ECF No. 13.
then filed a second Motion to Dismiss. ECF No. 15. Prior to
hearing the Motion to Dismiss, the Court called a status
conference with the parties to discuss the relationship
between Plaintiff's prior bankruptcy court action and
this case. Based on that conference, Plaintiff filed a Motion
to Substitute the Bankruptcy Trustee as Plaintiff. ECF No.
24. Based on the reasoning below, the Court now
GRANTS Plaintiff's Motion to Substitute
and DENIES as moot Defendant's Motion to
2016, Plaintiff filed for Chapter 7 bankruptcy. In re
McLeod-Wisienski, No. 16-49703 (Bankr. E.D. Mich. Dec.
8, 2016). Defendant alleges-and Plaintiff admits-that, in her
bankruptcy schedules, she did not disclose her potential
legal claim that arose on July 20, 2015, when she suffered
the injuries underlying this case. The relevant schedule asks
whether the individual filing for bankruptcy has any
“[c]laims against third parties, whether or not [she
has] filed a lawsuit or made a demand for payment.”
Plaintiff answered “no” to this question. ECF No.
February 27, 2019, the bankruptcy court granted
Plaintiff's request to reopen the bankruptcy proceeding
to report the undisclosed asset of her legal claim against
Wayne County. No. 16-49703, ECF No. 32. The appointed trustee
then filed a Report of Undisclosed Assets, ECF No. 36, and
notified all creditors of the assets, ECF No. 38. The
bankruptcy court issued an order authorizing the trustee,
Michael Stevenson, to employ special counsel to pursue the
Plaintiff's claim, ECF No. 44. The trustee designated
counsel in this case, Romano Law, to serve as the special
McLeod-Wisienski has standing despite not being the real
party in interest
first contends that Article III of the Constitution prevents
the Court from considering Plaintiff's motion to
substitute the trustee as plaintiff. This argument improperly
conflates standing doctrine with real party in interest
doctrine. While “[s]tanding involves a determination
whether the plaintiff can show an injury in fact traceable to
the conduct of the defendant, ” “the real party
in interest principle is a means to identify the person who
possesses the right sought to be enforced.”
Firestone v. Galbreath, 976 F.2d 279 (6th Cir. 1992)
(internal quotation marks omitted).
case, Ms. McLeod-Wisienski suffered an injury in fact-
falling from a bunk in jail. She alleges that this injury is
traceable to Defendant's conduct. She therefore has
standing to bring this action. But the question for purposes
of Plaintiff's motion to substitute is whether Ms.
McLeod-Wisienski is the real party in interest with the
capacity to bring the claim. All parties agree that she is
not-hence this motion to substitute the trustee of her
bankruptcy estate as Plaintiff in the matter. Because Ms.
McLeod-Wisienski has standing on her own, the Court is not
precluded from considering the motion to substitute.
Fed.R.Civ.P. 17 permits substitution of the bankruptcy
to Fed.R.Civ.P. 17(a)(3), “the court may not dismiss an
action for failure to prosecute in the name of the real party
in interest until, after an objection, a reasonable time has
been allowed for the real party in interest to ratify, join,
or be substituted into the action.” Courts use the
Advisory Note to Rule 17 to determine whether motions to
substitute real parties in interest should be granted.
E.g. Zurich Ins. Co. v. Logitrans, Inc., 297 F.3d
528, 532 (6th Cir. 2002). The Advisory Note speaks to the
Rule's intent. Rule 17 “is intended to prevent
forfeiture when determination of the proper party to sue is
difficult or when an understandable mistake has been
made.” Id. (quoting Fed.R.Civ.P. 17 advisory
committee's notes). Defendant's opposition to
substitution arises from two points, set forth below.
Defendant argues that Plaintiff excessively delayed seeking
substitution. Defendant argued in its first Motion to
Dismiss, filed on September 27, 2018, that the trustee of
Plaintiff's estate was the proper party in
interest. Plaintiff did not seek to substitute the
trustee until June 3, 2019-nine months later-though she began
the process of adding the legal claim to her estate to
authorize the trustee to pursue it in February 2019. Courts
in this district conduct a fact-specific inquiry to determine
whether putative substituted plaintiffs are seeking
substitution within a “reasonable time” after the
defendant's objection under Fed.R.Civ.P. 17. E.g.
Hilgraeve Corp. v. Symantec Corp., 212 F.R.D. 345, 349
(E.D. Mich. 2003). This analysis includes whether the
defendant will suffer prejudice from permitting substitution.
Id.; see also White House Servs. v. Allstate
Ins. Co., No. 17-CV-12672, 2018 WL 6527693, at *5 (E.D.
Mich. Dec. 12, 2018).
case, although there was some delay between Plaintiff's
awareness of the defect in her pleading and her motion to
substitute the trustee in her place, that delay was
reasonable. Reopening the bankruptcy proceeding and adding
this legal claim to Ms. McLeod-Wisienski's estate took
some time. Ms. McLeod-Wisienski has now completed this
process. Defendant will not suffer significant prejudice
given that this case is still in an early stage of
litigation. In addition, substituting the ...