(PC) Elder v. Joksch ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COREY JEROME ELDER, No. 2:16-CV-1925-DJC-DMC-P 12 Plaintiff, 13 v. ORDER 14 JOKSCH, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion, ECF No. 79, for substitution of 19 parties. Plaintiff’s motion for the appointment of counsel, ECF No. 80, will be addressed 20 separately. 21 On January 24, 2023, counsel for Defendant Joksch, who is the sole remaining 22 defendant in this action, filed a notice of Defendant’s death. See ECF No. 71. Plaintiff now 23 seeks leave to substitute “Defendant C. Joksch’s estate” for Defendant. ECF No. 79. Under 24 Federal Rule of Civil Procedure 25(a)(a), a party moving to substitute “must provide evidence 25 that the party to be substituted is the successor-in-interest or legal representative of the decedent.” 26 F.T.C. v. AMG Servs., Inc., 2014 WL 2742872 (D. Nev. 2014). A “proper party” is the legal 27 representative of the deceased party, such an executor of the decedent’s will or administrator of 28 the decedent’s estate. See Mallonee v. Fahey, 200 F.2d 918, 919-20 (9th Cir. 1952). 1 |} Additionally, a motion under Rule 25(a)(1) must be served on all parties as provided under Rule 5 2 || and upon persons not parties in the manner provided in Rule 4 for service of process. See Barlow 3 || v. Ground, 39 F.3d 231, 232-34 (9th Cir. 1994). 4 Here, Plaintiff has not named the proper party, nor has Plaintiff provided proof of 5 || service consistent with the requirements of Rule 4. 6 Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion for substitution, 7 || ECF No. 79, is denied without prejudice. 8 9 | Dated: June 5, 2023 Ss..c0_, 10 DENNIS M. COTA 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28