(SS) Aranda v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CONCEPCION ARANDA, Case No. 1:20-cv-00558-SAB 12 Plaintiff, ORDER RE STIPULATION FOR EXTENSION OF TIME 13 v. (ECF No. 13) 14 COMMISSIONER OF SOCIAL SECURITY, NINETY DAY DEADLINE 15 Defendant. 16 17 Plaintiff Concepcion Aranda (“Plaintiff”) filed this action seeking judicial review of a 18 final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying 19 an application for disability benefits pursuant to the Social Security Act. On March 12, 2021, a 20 stipulation was filed extending time for Plaintiff to serve her confidential letter brief on the 21 Commissioner. The stipulation notifies the Court that Plaintiff has passed away. 22 Pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure, 23 [i]f a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the 24 decedent’s successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent 25 must be dismissed. 26 Fed. R. Civ. P. 25(a)(1). 27 The Ninth Circuit has held that there are two affirmative steps that trigger the running of the ninety-day period in Rule 25(a)(1). See Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). 1 | First, a party must formally suggest the death of the party upon the record. Id. (citations 2 | omitted). Second, the suggestion of death must be served on parties in accordance with Rule 5 3 | and served on nonparties in accordance with Rule 4. Id. (citation omitted); Fed. R. Civ. P. 4 | 25(a)(3)). 5 Here, counsel for Plaintiff has filed a statement noting the death of Plaintiff upon the 6 | record, but there is no indication that the statement has been served on Plaintiff's successor or 7 | representative however, the statement does note that Plaintiff's sister informed counsel that 8 | Plaintiff was deceased. As Plaintiff's successor or representative has 90 days from the service of 9 | the statement noting Plaintiff's death to file a motion for substitution, the Court shall vacate all 10 | pending dates until a success in interest has appeared in the action. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. All pending dates are VACATED; 13 2. On or before March 30, 2021, proof shall be filed that the statement noting 14 Plaintiffs death has been served on Plaintiff's successor or representative; 15 3. The successor in interest shall file a motion to substitute the successor in interest 16 within ninety (90) days of the date of entry of this order; and 17 4. The parties are advised that the failure to comply with this order will result in the 18 issuance of sanctions, up to and including dismissal of this action. 19 IT IS SO ORDERED. OF. ee 21 | Dated: _March 15, 2021 _ ef UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28