(SS) Aguilar v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ARMAN AGUILAR, ) Case No.: 1:21-cv-0015 JLT ) 12 Plaintiff, ) ORDER AFTER SUGGESTION OF DEATH ) (Doc. 17) 13 v. ) 14 KILOLO KIJAKAZI,1 ) Acting Commissioner of Social Security, ) 15 ) Defendant. ) 16 ) 17 Joseph Pena, counsel for plaintiff Arman Aguilar, filed a notice of “Suggestion of Death” upon 18 the record. (Doc. 17.) Mr. Pena indicated that he received a phone call from a friend of Mr. Aguilar 19 on December 2, 2021, informing him that Plaintiff had passed away. (Id.) Mr. Pena then “received an 20 information copy of the certificate of death” on December 15, 2021. (Id.) 21 Pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure, the action may continue if a 22 claim is not extinguished. “A motion for substitution may be made by any party or by the decedent's 23 successor or representative. If the motion is not made within 90 days after service of a statement 24 noting the death, the action by or against the decedent must be dismissed.” Fed.R.Civ.P. 25(a)(1). If 25 the requirements of Rule 25(a) (1) are met, “[t]he substituted party steps into the same position as [the] 26 27 1 This action was originally filed against Andrew Saul in his capacity as the Commissioner of Social Security. 28 The Court has substituted Kilolo Kijakazi, who has since been appointed the Acting Commissioner of Social Security, as 1 original party.” Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 1996). 2 Because the “Suggestion of Death” has been filed on the record—and the Commissioner 3 received service through the e-filing system—the action must be dismissed if no motion for 4 substitution is filed within 90 days. See Summerfield v. Fackrell, 2012 WL 113281, at *2 (E.D. Cal. 5 Jan. 11, 2012) (before the 90-day period begins to run, the suggestion of death must be filed on the 6 record and served to the other parties); see also Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). 7 Accordingly, the Court ORDERS: Any motion to substitute a party as plaintiff SHALL be filed no 8 later than March 17, 2022. 9 10 IT IS SO ORDERED. 11 Dated: December 20, 2021 _ /s/ Jennifer L. Thurston 12 CHIEF UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28