Avalos v. Fastrip Oil Company, L.P. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE AVALOS, Case No. 1:21-cv-01034-AWI-HBK 12 Plaintiff, ORDER DIRECTING COUNSEL TO FILE PROOF OF SERVICE OF SUGGESTION OF 13 v. DEATH 14 FASTRIP OIL COMPANY, L.P., TWENTY-ONE DAY DEADLINE 15 Defendant. (Doc. No. 6) 16 17 Plaintiff’s counsel filed a Suggestion of Death Upon the Record Under Rule 25(a)(1), 18 noting Plaintiff died on July 22, 2021. (Doc. No. 6, “Suggestion”). The Suggestion contains no 19 certificate of service indicating that decedent’s successor-in-interest received notice. (Id.). 20 Federal Rule of Civil Procedure 25 provides 21 [i]f a party dies and the claim is not thereby extinguished, the court may order substitute of the proper parties. A motion for substitution 22 may be made by any party or by the decedent’s successor or representative. If the motion is not made within 90 days after service 23 of a statement noting death, the action by or against the decedent must be dismissed. 24 Fed. R. Civ. P. 25(a). The party filing the notice of death “must serve the other parties and 25 nonparty successors or representatives of the deceased with a suggestion of death in the same 26 manner as required for service of a motion to substitute. Id., 25(a)(1). A party may be served the 27 suggestion of death by service on his or her attorney, Fed R. Civ. P. 5(b), while non-party 28 1 | successors or representatives of the deceased party must be served the suggestion of death in the 2 || manner provided by Rule 4 for the service of summons. See Barlow v. Ground, 39 F.3d 231, 233 3 | (9th Cir. 1994). “[T]he 90-day period provided by Rule 25(a)(1) will not be triggered against [the 4 | decedent’s] estate until the appropriate representative of the estate is served a suggestion of death 5 | in the manner provided by Federal Rule of Civil Procedure 4.” Id. at 233-234. 6 It does not appear a representative of Plaintiff's estate received notice because no 7 | certificate of service accompanied Plaintiff's Suggestion. (See Doc. No. 6). Only Defendant 8 | received notice. Although Plaintiff's counsel filed the Suggestion, the Ninth Circuit noted that 9 || non-party successors or representative of the deceased party “may not be protected by the 10 | attorney of the deceased party. It is entirely possible that no relationship will exist between 11 | them.” Barlow, 39 F.3d at 233. Therefore, Plaintiff's filing of the Suggestion did not trigger the 12 | running of the 90-day period. 13 Accordingly, it is ORDERED: 14 Counsel for Plaintiff shall file proof of service of suggestion of death upon nonparty 15 | successors or representatives of the deceased within twenty-one (21) days from the date of this 16 | Order. 17 | Dated: __Angust 6, 2021 Mihaw. Wh. foareh Zaskth 19 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28