UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

JON O. BREITWEISER,

Plaintiff,

v. CAUSE NO.: 2:19-CV-325-TLS

SHERIFF OF LAKE COUNTY, LAKE COUNTY SHERIFF DEPARTMENT, and VARIOUS ABC ENTITIES 1–10,

Defendants.

OPINION AND ORDER This matter is before the Court on a Motion to Substitute Plaintiff Jon O. Breitweiser [ECF No. 46], filed on May 11, 2022. The Defendants indicated on the record that they have no objection to the motion. See ECF No. 52. On January 24, 2022, counsel for the Defendants filed a Suggestion of Death [ECF No. 41], advising the court and the parties of the unfortunate death of Plaintiff Jon O. Breitweiser on January 10, 2022. On May 11, 2022, counsel for the Plaintiff filed the instant Motion to Substitute Plaintiff Jon O. Breitweiser, indicating that Tammy Breitweiser received Letters of Authority of the Estate of Jon O. Breitweiser on May 9, 2022, and moving for Tammy Breitweiser, Personal Representative, to be substituted for Plaintiff Jon O. Breitweiser. The Federal Rules of Civil Procedure provide that, “[i]f a party dies and the claim is not extinguished, the court may order substitution of the proper party.” Fed. R. Civ. P. 25(a)(1). The Seventh Circuit has explained that the proper party for substitution is ordinarily the “personal representative of the party who has died.” Tucker v. Mitchell-Lawshea, No. 17 CV 05883,

, at *2 (N.D. Ill. Mar. 6, 2019) (citing Atkins v. City of Chicago,

(7th Cir. 2008)). Although the Motion to Substitute was not filed within 90 days of the Suggestion of Death as required by Rule 25, see Fed. R. Civ. P. 25(a)(1) (“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.”), the Court finds that substitution is nevertheless warranted under the circumstances that Tammy Breitweiser did not receive Letters of Authority until May 9,

2022, the Motion to Substitute was promptly filed two days later, and the Defendants do not object to the substitution. See, e.g., Martin v. Heartland Head Start, Inc., No. 20-cv-1401,

, at *2 (C.D. Ill. May 12, 2022) (allowing substitution beyond the 90-day period for excusable neglect). Accordingly, the Court hereby GRANTS the Motion to Substitute Plaintiff Jon O. Breitweiser [ECF No. 46]. The Court ORDERS that Tammy Breitweiser is SUBSTITUTED for Jon O. Breitweiser in this cause of action. The Court DIRECTS the Clerk of Court to amend the electronic docket to replace “Jon O. Breitweiser” with “Tammy Breitweiser, in her capacity as Personal Representative of the Estate of Jon O. Breitweiser.”

SO ORDERED on June 10, 2022. s/ Theresa L. Springmann JUDGE THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT