Avalos v. AutoZone 5335 ( 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-00626 NONE JLT ) 12 Plaintiff, ) ORDER AFTER SUGGESTION OF DEATH ) (Doc. 21) 13 v. ) 14 AUTOZONE #5335, et al., ) ) 15 Defendants. ) ) 16 17 On July 29, 2021, Mr. Manning, counsel for the plaintiff, George Avalos, filed a notice of 18 “Suggestion of Death Upon the Record.” (Doc. 21.) Mr. Manning indicates that Mr. Avalos died on 19 July 22, 2021. (Id. at 2.) 20 Rule 25(a)(1) of the Federal Rules of Civil Procedure allows the action to continue if a claim is 21 not extinguished. “A motion for substitution may be made by any party or by the decedent's successor 22 or representative. If the motion is not made within 90 days after service of a statement noting the 23 death, the action by or against the decedent must be dismissed.” Fed.R.Civ.P. 25(a)(1). If the 24 requirements of Rule 25(a) (1) are met, “[t]he substituted party steps into the same position as [the] 25 original party.” Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 1996). 26 Because the “Suggestion of Death” has been filed on the record—and the defendants received 27 service through the e-filing system—the action must be dismissed if no motion for substitution is filed 28 within 90 days. See Summerfield v. Fackrell, 2012 WL 113281, at *2 (E.D. Cal. Jan. 11, 2012) 1 (before the 90-day period begins to run, the suggestion of death must be filed on the record and served 2 to the other parties); see also Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). Accordingly, the 3 Court ORDERS: Any motion to substitute a party as plaintiff SHALL be within 90 days of the filing 4 of the “Suggestion of Death,” or no later than October 27, 2021. 5 6 IT IS SO ORDERED. 7 Dated: August 2, 2021 _ /s/ Jennifer L. Thurston 8 CHIEF UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28