Elkins v. California Highway Patrol ( 2019 )

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 THE ESTATE OF CECIL ELKINS JR. et Case No. 1:13-CV-01483-AWI-SAB al. , 10 [PROPOSED] STIPULATED ORDER Plaintiffs, DISMISSING THE CLAIMS OF CECIL 11 ELKINS, SR., WITH PREJUDICE v. 12 13 OFF. H. PELAYO, 14 Defendant. 15 16 Plaintiff Cecil Elkins, Sr., passed away on November 17, 2018.1 Since that date, no party 17 or entity has successfully substituted in as a representative of Cecil Elkins Sr.’s claims in this 18 action. 19 The remaining plaintiffs and defendant have agreed to a settlement in principle with regard 20 to the claims of former plaintiff Cecil Elkins Sr.: dismissal of Cecil Elkins Sr.’s claims in this 21 action in exchange for defendant waiving the right to seek costs from the Estate of Cecil Elkins 22 Sr. However, any property interest that might exist in Cecil Elkins Sr.’s claims is now subject to 23 the jurisdiction of a state court probate proceeding which will continue for an indeterminate 24 period of time. Defendant is concerned that unknown third parties may attempt to revive Cecil 25 Elkins Sr.’s claims in this action based on a future distribution of the Estate, after defendant 26 waives the right to seek costs. As a result, the parties to this action have been unable to finalize a 27 settlement agreement dismissing Cecil Elkins Sr.’s claims. 28 1 The Court notes that a notice of death was filed in December 2018. See Doc. No. 163. 1 Accordingly, at the request of the parties to this action, the Court now enters the following 2 | stipulated Orders: 3 e Pursuant to Federal Rule 25(a)(1), all claims in this action by deceased plaintiff Cecil 4 Elkins Sr. are DISMISSED WITH PREJUDICE.” 5 e Defendant Hipolito Pelayo’s deadlines to seek costs against the Estate of Cecil Elkins 6 Sr. are TOLLED for the duration of all limitations periods affecting the assertion of 7 Cecil Elkins Sr.’s claims, including any resulting from the state court probate 8 proceedings administering the Estate and any time permitted for appeal. 9 e Defendant Hipolito Pelayo is PRECLUDED from filing a petition for costs against the 10 Estate of Cecil Elkins Sr. unless and until any person or entity attempts to revive Cecil 11 Elkins Sr.’s claims in this action. If any attempt is made to revive Cecil Elkins Sr.’s 12 claims in this action, the preclusion will terminate. If all limitations periods applicable 13 to Cecil Elkins Sr.’s claims expire and no attempt is made to revive Cecil Elkins Sr.’s 14 claims in this action, the preclusion will become permanent. 15 e This Order does not affect the ability to seek costs as between the parties whose claims 16 remain in this action. 17 18 IT IS SO ORDERED. 19 | Dated: _ September 16, 2019 —= Z : Cb it — SENIOR DISTRICT JUDGE 20 21 22 23 24 25 26 > Given the significant passage of time since the filing of the notice of death, and the fact that no successful substitution has yet to occur, the Court finds that dismissal with prejudice is 27 | appropriate. Cf. Zanowick v. Baxter Healthcare Corp., 850 F.3d 1090, 1094-96 (9t h Cir. 2017) (explaining inter alia that courts have discretion to dismiss claims with or without prejudice 28 || under Rule 25(a)(1)).