Brown v. County of Mariposa ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY BROWN, Case No. 1:18-cv-01541-NONE-SAB 12 Plaintiff, ORDER ADVISING DEFENDANTS OF REQUIREMENT TO FILE PROOF OF 13 v. SERVICE OF SUGGESTION OF DEATH OF PLAINTIFF IN ORDER TO TRIGGER 14 COUNTY OF MARIPOSA, et al., NINETY-DAY PERIOD 15 Defendants. (ECF No. 49) 16 17 Jeffrey Brown (“Plaintiff”) filed this action on November 7, 2018. (ECF No. 1.) On 18 January 21, 2021, Defendants filed a statement suggesting the death of Plaintiff. (ECF No. 49.) 19 Rule 25(a)(1) provides for the dismissal of a party or an action if a motion for substitution 20 is not made within ninety days after service of a statement noting the party’s death. Fed. R. Civ. 21 P. 25(a)(1). In order for the ninety-day period for substitution to be triggered, a party must 22 formally suggest the death of the party upon the record, Fed. R. Civ. P. 25(a)(1), and must serve 23 other parties and nonparty successors or representatives of the deceased with a suggestion of 24 death in the same manner as required for service of the motion to substitute, Fed. R. Civ. P. 25 25(a)(3). Thus, a party may be served with the suggestion of death by service on his or her 26 attorney, Fed. R. Civ. P. 5(b), while non-party successors or representatives of the deceased party 27 must be served the suggestion of death in the manner provided by Rule 4 for the service of a summons. Fed. R. Civ. P. 25(a)(3); Barlow v. Ground, 39 F.3d 231, 232-34 (9th Cir. 1994). 1 | Rule 25 requires dismissal, absent a motion for substitution within the ninety-day period, only if 2 | the statement of death was properly served. Gilmore v. Lockard, 936 F.3d 857, 866-67 (9th Cir. 3 | 2019) (stating Barlow is “understood as interpreting the 90-day rule judiciously: where a party 4 | files a suggestion of death, it must do so in a manner that puts all interested parties and 5 | nonparties on notice of their claims in order to trigger the 90-day window.”). 6 While Plaintiffs attorney has been served the suggestion of death, Defendants have not 7 | filed a proof of service for the non-party successors or representatives of Plaintiff. Accordingly, g | Defendants are HEREBY NOTIFIED they must file proof that the non-party successors or g | representatives of Plaintiff have been served with the suggestion of death in order to trigger the 10 | time period described in Federal Rule of Civil Procedure 25(a). 11 12 | IT IS SO ORDERED. A fe 13 | Dated: _ January 22, 2021 OF 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28