(PC) Quiroga v. King ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MONICO J. QUIROGA, III, Case No. 1:15-cv-01697-AWI-HBK 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS TO DISMISS THIS ACTION PURSUANT TO 14 TIMOTHY KING, et al., FEDERAL RULE OF CIVIL PROCEDURE 25(A)(1) 1 15 Defendants. OBJECTIONS DUE IN FOURTEEN DAYS 16 17 18 19 This matter comes before the court upon sua sponte review of the file, which was 20 reassigned to the undersigned on November 17, 2020. (Doc. No. 84). On July 16, 2020, counsel 21 for defense filed a “Notice of Death of Plaintiff” alerting the court that plaintiff was deceased. 22 (Doc. No. 79). On July 20, 2020, the court directed defense counsel pursuant to Federal Rule of 23 Civil Procedure 25(a)(1) to ensure that the notice of death was served on the nonparty successor 24 or representative of Plaintiff’s estate under Fed. R. Civ. P. 4(m). (Doc. No. 80). On August 7, 25 2020, defense counsel filed proof of service of a suggestion of death on all known nonparty 26 successors and representatives of Plaintiff’s estate. (Doc. No. 81). None of the individuals 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 1 | served have moved to substitute the decedent as plaintiff in this matter or otherwise appeared. 2 || (See docket). 3 “If a party dies and the claim is not thereby extinguished, the court may order substitution 4 || of the proper parties. A motion for substitution may be made by any party or by the decedent’s 5 || successor or representative. If the motion is not made within 90 days after service of a statement 6 || noting the death, the action by or against the decedent must be dismissed.” Fed. R. Civ. P. 7 || 25(a)(1) (emphasis added). When a deceased plaintiff is not timely substituted, dismissal is 8 | “required.” Smith v. McCotter, 931 F.2d 61 (9th Cir. 1991). 9 The suggestion of death was served on decedent’s successors or representative on various 10 || dates from July 21, 2020 through July 30, 2020. (Doc. Nos. 81, 82). More than 90 days have 11 || passed and no motion for substitution by the decedent’s successors or representatives have been 12 || made. Dismissal is therefore required by Fed. R. Civ. P. 25(a)(1). 13 Accordingly, it is RECOMMENDED: 14 1. This action be dismissed pursuant to Federal Rule of Civil Procedure 25(a)(1). 15 2. The Clerk of the Court be directed to terminate all deadlines and close this case. 16 NOTICE TO PARTIES 17 These findings and recommendations will be submitted to the United States district judge 18 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 19 | (14) days after being served with these findings and recommendations, a party may file written 20 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 21 || Findings and Recommendations.” Parties are advised that failure to file objections within the 22 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 23 || 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 95 IT IS SO ORDERED. 26 Dated: _ May 27, 2021 Mihaw. Th. Doareh faskth 27 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE