November 5, 1998 MOTION BY PLAINTIFF FOR SUBSTITUTION OF PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLES W. FAULKNER FOR DECEASED DEFENDANT CHARLES W. FAULKNER, [F.R.C.P. RULE 25 (a) (1)], in LAMBROS vs. FAULKNER, Civil No. 98-1621. Four (4) pages total including Certificate of Service page.
CERTIFICATE OF SERVICE
I hereby state under the penalty of perjury that a true and correct copy of the attached:
a. PLAINTIFF'S MOTION TO ALTER THE PLEADINGS IN THIS MATTER AS PER
UNITED STATES MAGISTRATE JUDGE JOHN M. MASON'S ORDER, DATED OCTOBER
(89 pages) Dated November 4, 1998
b. November 5, 1998 MOTION BY PLAINTIFF FOR SUBSTITUTION OF PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLES W. FAULKNER FOR DECEASED DEFENDANT CHARLES W. FAULKNER, [F.R.C.P. RULE 25 (a) (1)] (3( pages) Dated November 5, 1998.
was served via first class mail, postage paid, to the following persons this 10th day of November, 1998, to:
1. Clerk of the Court
U.S. District Court
District of Minnesota
Warren E. Burger Federal Building
316 North Robert Street
St. Paul, Minnesota 55101-1460
One original and one copy
U.S. CERTIFIED MAIL NO. Z-574-067-202, RETURN RECEIPT REQUESTED
2. Attorney Donna Rae Johnson
300 McCall Bldg.
366 Jackson Street
St. Paul, Minnesota 55101
Attorney representing the defendants in this case.
4. INTERNET RELEASE TO GLOBAL HUMAN RIGHTS GROUPS
5. Inter-American Commission on Human Rights
Organization of American States
1889 F. Street N.W.
Washington, D.C. 20006 USA
U.S. CERTIFIED MAIL NO. Z-574-067-201, RETURN RECEIPT REQUESTED
RE: TO BE FILED WITH JULY 30, 1998 COMPLAINT AND RELEASED TO ALL 35 COUNTRIES THAT ARE MEMBERS OF THE ORGANIZATION OF AMERICAN STATES.
John Gregory Lambros, Pro Se # 00436-124
P.O. Box 1000
Leavenworth, Kansas 66048-1000 USA
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JOHN GREGORY LAMBROS, #00436-124
PO Box 1000
Leavenworth, Kansas 66048-1000, USA
http://members.aol.com/Lambrosb1 (final digit number 1)
ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER, 2680 Sumac Ridge, St. Paul, Minnesota 55110 USA
ATTORNEY SHEILA REGAN FAULKNER, 2680 Sumac Ridge, St. Paul, Minnesota 55110 USA
FAULKNER & FAULKNER, Attorneys-at-Law, 2680 Sumac Ridge, St. Paul, Minnesota 55110 USA;
JOHN & JANE DOE'S, persons employed by Attorney C.W. Faulkner, Sheila Regan Faulkner and Faulkner & Faulkner in the representation of John Gregory Lambros;
Defendants (Severally and jointly liable).
CIVIL CASE NO.
DEMAND FOR TRIAL BY JURY, Title 28 USC Rule 38 & 39.
COMPANION CASE NO.
U.S. vs. LAMBROS, Criminal File No. CR-4-89-82(05), District of Minnesota, Eighth Circuit Court of Appeals No. 65 F.3d 698 (1995).
MOTION BY PLAINTIFF FOR SUBSTITUTION OF PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLES W. FAULKNER FOR DECEASED DEFENDANT CHARLES W. FAULKNER, [F.R.C.P. RULE 25 (a) (1)]
Attorney Charles W. Faulkner, the above-named defendant, died on
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October 6, 1997, and the estate of Defendant Charles W. Faulkner has passed into the control of Defendant Sheila Regan Faulkner, the widow of Defendant Charles W. Faulkner, the personal representative of the Estate of Charles W. Faulkner, and the partner of Faulkner & Faulkner, Attorney at Law, as stated in Sheila Regan Faulkner's ANSWER, dated September 8, 1998.
1. Federal Rules of Civil Procedure 25(a)(1) states that the court "MAY" order substitution following the death of a party to a pending action. Therefore, substitution is not a matter of right, and a motion for substitution is addressed to the court's discretion. See, ANDERSON vs. YUNGKAU, 329 U.S. 482, 67 SCt 428, 91 LE 436 (1947).
2. Once service of the suggestion of death occurs, a motion to substitute must be made within 90 days. See, Fed.R.Civ.P. Rule 25(a)(1). Thus, by making a suggestion of death on the record, a party or the representative of the deceased party may limit the time within which a substitution motion may be made. See, HENKEL vs. STRATTON, 612 F.Supp. 190 (ND Ohio 1985). Failure to move for substitution within the 90 day period following service of the suggestion of death may result in dismissal of the action as to the deceased party. The formal service of suggestion of death is required even when all parties are aware of the death of a party. See, HENKEL vs. STRATTON, 612 F.Supp. 190.
3. Plaintiff Lambros received formal service of Defendant Charles W. Faulkner's death by Defendant Sheila Regan Faulkner on September 11, 1998.
PLAINTIFF LAMBROS MOVES THIS COURT FOR SUBSTITION AT ITS DISCRETION:
4. Plaintiff requests that this court NOT DISMISS this action as to deceased Attorney Charles W. Faulkner, but substitute.
5. Plaintiff believes Defendant Sheila Regan Faulkner is the correct person to substitute for deceased Defendant Charles W. Faulkner.
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6. Plaintiff Lambros requests all liability against Defendant Attorney Charles W. Faulkner to continue in this action, thus not opposing if substitution or joinder is made unabated and does not create new relationships among the Defendant's.
7. Plaintiff Lambros requests that this action continue in the name of the original parties and all the transferee's be bound by this court's judgments.
8. This motion has been submitted with 90 days of Plaintiff being notified by Defendant's as to Charles W. Faulkner death, thus Defendant Charles W. Faulkner may not be dismissed from this above-entitled case.
I HEREBY STATE UNDER THE PENALTY OF PERJURY THAT THE ABOVE IS TRUE AND CORRECT AS PER TITLE 28 U.S.C. §1746.
DATED: NOVEMBER 5, 1998
John Gregory Lambros, Pro Se
Reg. No. 00436-124
P.O. Box 1000
Leavenworth, Kansas 66048-1000
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For more information write (snail mail) JOHN GREGORY LAMBROS directly at:
JOHN GREGORY LAMBROS
Prisoner No. 00436-124
U. S. Penitentiary Leavenworth
PO Box 1000
Leavenworth, KS 66048-1000
THANK YOU FOR YOUR SUPPORT AND ASSISTANCE IN MY BOYCOTT OF BRAZILIAN PRODUCTS.