Avalos v. Sandhu ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 GEORGE AVALOS, Case No. 1:21-cv-00538-NONE-SAB 11 Plaintiff, ORDER REQUIRING PLAINTIFF’S 12 COUNSEL TO ADDRESS PLAINTIFF’S v. NOTICES OF DEATH FILED IN OTHER 13 ACTIONS BEFORE THIS COURT GURDIP SINGH SANDHU, 14 FIVE DAY DEADLINE Defendant. 15 16 17 On March 30, 2021, Plaintiff filed this action pursuant to the Americans with Disabilities 18 Act. (ECF No. 1.) Defendant has not appeared in this action. On July 26, 2021, the undersigned 19 issued findings and recommendations recommending that Plaintiff’s motion for default judgment 20 be granted. (ECF No. 12.) No objections have been filed within the fourteen day period to do 21 so. 22 In other actions brought by Plaintiff George Avalos, on July 29, 2021, notices suggesting 23 the death of Plaintiff George Avalos were filed pursuant Federal Rule of Civil Procedure 24 25(a)(1). (See Avalos v. Southern Pacpizza, LLC, 21-cv-00547-NONE-SAB, ECF No. 14; 25 Avalos v. Uppal Investments, Inc., 21-cv-01003-NONE-SAB, ECF No. 11.) In those cases, the 26 Court ordered such notices to be served on the successors of interest, and in such orders, noted 27 that no such suggestion of death had been filed in this action. (See 21-cv-00547-NONE-SAB, ECF No. 15 n.1; 21-cv-01003-NONE-SAB, ECF No. 12 n.1.) 1 Rule 25(a)(1) provides for the dismissal of a party or an action if a motion for substitution 2 | is not made within ninety days after service of a statement noting the party’s death. Fed. R. Civ. P. 25¢a)(_). The Ninth Circuit has held that there are two affirmative steps that trigger the 4 | running of the ninety-day period in Rule 25(a)(1). See Barlow v. Ground, 39 F.3d 231, 233 (9th 5 | Cir. 1994). First, a party must formally suggest the death of the party upon the record. Id. 6 | (citations omitted). Second, the suggestion of death must be served on parties in accordance 7 | with Rule 5 and served on nonparties in accordance with Rule 4. Id. (citation omitted); Fed. R. 8 | Civ. P. 25(a)(3)). 9 The Court is not aware of any reason why a pending motion for default judgment or 10 | pending findings and recommendations would relieve counsel from the requirement to follow the 11 | procedures under Rule 25(a), given the apparent death of the Plaintiff in this action. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff's counsel shall either file a statement noting the death of Plaintiff upon 14 the record, or a statement informing the Court why such notice would not be 15 required, within five (5) days of entry of this order; 16 2. If a statement noting the death of Plaintiff is filed, Plaintiff's counsel shall also 17 file proof that the statement noting Plaintiff's death has been served on Plaintiff's 18 successor or representative 19 3. A motion to substitute the successor in interest shall be filed within ninety (90) 20 days of the date of service of the statement noting Plaintiff's death, if any; and 21 4. The failure to comply with this order will result in the issuance of sanctions, up to 22 and including dismissal of this action. 23 24 IT IS SO ORDERED. OF. nf ee 25 | Dated: _ August 10, 2021 UNITED STATES MAGISTRATE JUDGE 27 28