(PC) Simmons v. Alcantara ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMIAH SIMMONS, No. 2:19-cv-2492 TLN KJN P 12 Plaintiff, 13 v. ORDER 14 ALCANTARA, 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. On February 9, 2022, in plaintiff’s prior 18 case, counsel for defendant Pompey filed a suggestion of death upon the record attesting to the 19 death of plaintiff Jeremiah Simmons on December 3, 2021. Simmons v. Pompey, No. 2:19-cv- 20 2491 JDP (E.D. Cal.) (ECF No. 32). The court takes judicial notice of such filing. See, e.g., 21 Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002) (“[W]e may take notice of 22 proceedings in other courts, both within and without the federal judicial system, if those 23 proceedings have a direct relation to matters at issue”) (internal quotation omitted). 24 Federal Rule of Civil Procedure 25 establishes the process for moving forward after a 25 party to a civil action has died. Of relevance here, it provides that “[i]f a party dies and the claim 26 is not extinguished, the court may order substitution of a proper party.” Fed. R. Civ. P. 25(a). If 27 the decedent’s successor or representative do not file a motion for substitution “within 90 days 28 after service of a statement noting the death, the action by or against the decedent must be 1 dismissed.” Id. Under California law -- which federal courts apply in determining survival of a 2 claim under 42 U.S.C. § 1983 -- a cause of action against a person is generally not extinguished 3 by that person’s death. Cal. Civ. Proc. Code § 377.20(a); see Robertson v. Wegmann, 436 U.S. 4 584, 590 (1978). 5 The Court of Appeals for the Ninth Circuit explained that Rule 25 requires two 6 affirmative steps to trigger the 90-day period: 7 First, a party must formally suggest the death of the party upon the record. Second, the suggesting party must serve other parties and 8 nonparty successors or representatives of the deceased with a suggestion of death in the same manner as required for service of the 9 motion to substitute. Thus, a party may be served the suggestion of death by service on his or her attorney, while nonparty successors or 10 representatives of the deceased party must be served the suggestion of death in the manner provided by Rule 4 for the service of a 11 summons. 12 Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994) (internal citations omitted). Under Barlow, 13 the defendant has some obligation to identify the plaintiff’s representative or successor and to 14 serve the notice of death on that party. See Gilmore v. Lockard, 936 F.3d 857, 865-68 (9th Cir. 15 2019) (same). 16 Defendant is ordered to provide the court with a formal notice of plaintiff’s death and 17 to serve that notice on plaintiff’s representative or successor. If defendant is unable to identify 18 plaintiff’s representative or successor, he shall file a notice with the court explaining the steps that 19 he has taken to locate plaintiff’s representative or successor. See Gruenberg v. Maricopa County 20 Sheriff’s Office, 2008 WL 2001253 (D. Ariz. May 7, 2008) (dismissing action without prejudice 21 after Gruenberg died and defendants could not locate a successor). 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. Within fourteen days of the date of this order, defendant shall file with the court a 24 formal notice of plaintiff’s death; and 25 2. Within thirty days from the date of this order, defendant shall either: (a) serve that 26 notice on plaintiff’s personal representative or successor in interest, and file a certificate of 27 service with the court; or (b) notify the court that plaintiff’s representative or successor could not 28 //// 1 | be located and explain the steps defendant has taken to locate plaintiffs representative or 2 || successor. 3 || Dated: February 11, 2022 ' Foci) Aharon 5 KENDALL J. NE /eimm?497.death UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28