(SS)Gonzales 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 JOSEPH RICHARD GONZALES, ) Case No.: 1:20-cv-0517 JLT ) 12 Plaintiff, ) ORDER DISMISSING THE ACTION WITHOUT ) PREJUDICE 13 v. ) 14 KILOLO KIJAKAZI1, ) Acting Commissioner of Social Security, ) 15 ) Defendant. ) 16 ) 17 Joseph Richard Gonzalez initiated this action seeking judicial review of a decision denying his 18 application for Social Security benefits. (Doc. 1) On April 26, 2021, Joseph Peña, counsel for Mr. 19 Gonzales, filed a notice of “Suggestion of Death,” in which he indicated the Social Security 20 Administration had informed counsel that “the Plaintiff had passed away.” (Doc. 15 at 1.) The Court 21 ordered “[a]ny motion to substitute a party as plaintiff SHALL be filed no later than July 15, 2021,” 22 pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure. (Doc. 16 at 2, emphasis omitted.) 23 On July 19, 2021, the Court noted a motion had not been filed and ordered Mr. Peña to show 24 cause “show cause within fourteen days of the date of service of this Order why the action should not 25 be dismissed for the failure comply with the Court’s order and failure to prosecute, or in the 26 alternative, to file a motion for substitution.” (Doc. 19 at 2, emphasis omitted.) In response, Mr. Peña 27 1 This action was originally filed against Andrew Saul in his capacity as the Commissioner of Social Security. 28 (See Doc. 1 at 1.) The Court has substituted Kilolo Kijakazi, who has since been appointed the Acting Commissioner of 1 requested an extension of time, noting he was informed Mr. Gonzalez had a companion named Ericka 2 Deal who had lived with the deceased, and Mr. Peña was willing to attempt service “on the possible 3 successors in interest or legal representative.” (Doc. 20 at 3.) 4 On September 16, 2021, Mr. Peña filed a “Certificate of Service,” indicating service of the 5 “Suggestion of Death,” “Order after Suggestion of Death,” the “Order to Show Cause,” and the 6 “Response to the OSC.” (Doc. 21 at 1.) The proof of service indicates Ms. Deal was served with these 7 documents on September 9, 2021. (Id.) 8 Pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure, the action may continue if a 9 claim is not extinguished, and “[a] motion for substitution may be made by any party or by the 10 decedent's successor or representative.” If the requirements of Rule 25(a) (1) are met, “[t]he substituted 11 party steps into the same position as [the] original party.” Hilao v. Estate of Marcos, 103 F.3d 762, 766 12 (9th Cir. 1996). However, “[i]f the motion is not made within 90 days after service of a statement 13 noting the death, the action by or against the decedent must be dismissed.” Fed.R.Civ.P. 25(a)(1). 14 Because the “Suggestion of Death” was filed on the record and served upon a potential 15 successor in interest on September 9, 2021, any motion for substitution was due no later than December 16 8, 2021. See Fed.R.Civ.P. 25(a)(1); see also Summerfield v. Fackrell, 2012 WL 113281, at *2 (E.D. 17 Cal. Jan. 11, 2012) (before the 90-day period begins to run, the suggestion of death must be filed on the 18 record and served to the other parties); see also Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). 19 Importantly, Rule 25(a)(1) is stated in mandatory terms, and the action “must be dismissed” give the 20 failure to timely file a motion for substitution. See id. (emphasis added.) Accordingly, the Court 21 ORDERS: 22 1. The action is DISMISSED without prejudice; and 23 2. The Clerk of Court is DIRECTED to close this action. 24 25 IT IS SO ORDERED. 26 Dated: December 20, 2021 _ /s/ Jennifer L. Thurston 27 CHIEF UNITED STATES MAGISTRATE JUDGE 28