Avalos v. Southern Pacpizza, LLC ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE AVALOS, Case No. 1:21-cv-00547-NONE-SAB 12 Plaintiff, ORDER REQUIRING STATEMENT OF DEATH TO BE SERVED ON SUCCESSOR 13 v. OR REPRESENTATIVE 14 SOUTHERN PACPIZZA, LLC, et al., (ECF No. 14) 15 Defendants. TEN DAY DEADLINE 16 17 George Avalos (“Plaintiff”) filed this action on March 30, 2021. (ECF No. 1.) On July 18 29, 2021, counsel for Plaintiff filed a statement under Federal Rule of Civil Procedure 25(a)(1) 19 suggesting the death of Plaintiff. (ECF No. 14.)1 20 Rule 25(a)(1) provides for the dismissal of a party or an action if a motion for substitution 21 is not made within ninety days after service of a statement noting the party’s death. Fed. R. Civ. 22 P. 25(a)(1). The Ninth Circuit has held that there are two affirmative steps that trigger the 23 running of the ninety-day period in Rule 25(a)(1). See Barlow v. Ground, 39 F.3d 231, 233 (9th 24 Cir. 1994). First, a party must formally suggest the death of the party upon the record. Id. 25 (citations omitted). Second, the suggestion of death must be served on parties in accordance 26 with Rule 5 and served on nonparties in accordance with Rule 4. Id. (citation omitted); Fed. R. 27 1 The Court notes that Plaintiff’s counsel has not filed such notice in another action before the undersigned brought by George Avalos, that currently has a findings and recommendations regarding a motion for default judgment 1 | Civ. P. 25(a)(3)). 2 Here, counsel for Plaintiff has filed a statement noting the death of Plaintiff upon the 3 | record, but there is no indication that the statement has been served on Plaintiff's successor or 4 | representative. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff's counsel shall file proof that the statement noting Plaintiff's death has 7 been served on Plaintiff's successor or representative within ten (10) days of 8 entry of this order; 9 2. A motion to substitute the successor in interest within ninety (90) days of the date 10 of service of the statement noting Plaintiff's death; and 11 3. The failure to comply with this order will result in the issuance of sanctions, up to 12 and including dismissal of this action. 13 14 IT IS SO ORDERED. DAM Le 15 | Dated: _July 30, 2021 _ ee 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28