(PC) Green v. Mohyuddin ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANK GREEN, No. 2:23-cv-1066 KJN P 12 Plaintiff, 13 v. ORDER 14 DR. MOHYUDDIN, 15 Defendant. 16 17 On November 29, 2023, defendant filed notice of plaintiff’s death. (ECF No. 17.) For the 18 reasons stated herein, defendant is directed to file an amended notice of death. 19 Federal Rule of Civil Procedure 25 establishes the procedure for moving forward with 20 litigation after a party to a civil action has died. It provides that “[i]f a party dies and the claim is 21 not extinguished, the court may order substitution of a proper party.” Fed. R. Civ. P. 25(a). 22 Under Rule 25(a)(1), a party must formally suggest the death of the party upon the record 23 and serve the nonparty representatives of the deceased party with the suggestion of death in the 24 manner provided in Federal Rule of Civil Procedure 4 for the service of a summons. Barlow v. 25 Ground, 39 F.3d 231, 233 (9th Cir. 1994). If the decedent’s successor or representative do not 26 file a motion for substitution “within 90 days after service of a statement noting the death, the 27 action by or against the decedent must be dismissed.” Fed. R. Civ. P. 25(a). “The objective of 28 ‘Rule 25(a)(1) is to alert nonparties to the consequences of the death of a party in a pending 1 | lawsuit so that they may act if they desire to preserve the decedent’s claim.’” Simmons v. 2 | Pompey, 2023 WL 6612531, at *2 (E.D. Cal. Oct. 10, 2023) (quoting Gruenberg v. Maricopa 3 | Cnty. Sheriffs Off., 2008 WL 2001253, at *1 (D. Ariz. May 7, 2008)); see also Gilmore v. 4 | Lockard, 936 F.3d 857, 864 (9th Cir. 2019) (“Rule 25(a) seeks ‘to inform all interested parties of 5 || [a party’s] death so that they may take appropriate action.”) (internal citations omitted)). 6 In the notice of death, defendant states that defense counsel conducted an electronic 7 || search of active probate matters on the Superior Court of California, County of San Joaquin 8 | online Registrar of Actions, but was unable to locate any probate matters in plaintiff's name. 9 || (ECF No. 17 at 1.) Defendant states that based on information provided to defense counsel by an 10 || investigator at the San Joaquin County Medical Examiner’s Office, plaintiff was not married and 11 || is survived by his two children, Kimmicha Dalina Green and Jonathan Green. (Id.) Defendant 12 || does not state that he served the notice of death on plaintiffs children. 13 State law governs who receives a decedent’s § 1983 claim. Estate of Cornejo ex rel. Solis 14 || v. City of Los Angeles, 618 Fed. Appx. 917, *919 (9th Cir. 2015) (citing 42 U.S.C. § 1988; 15 || Robertson v. Wegmann, 436 U.S. 584, 589 (1978)). Under California law, plaintiffs claim 16 || “passes to [his] successor in interest.” Cal. Civ. Proc. Code § 377.30. 17 Plaintiff's children appear to be plaintiffs successors in interest. See Cornejo, 618 Fed. 18 | Appx. at *919. Therefore, the notice of death filed November 29, 2023, is defective because it 19 || does not contain proof of service on plaintiffs children. 20 Accordingly, IT IS HEREBY ORDERED that within fourteen days of the date of this 21 || order, defendant shall file an amended notice of death with proof of service on plaintiff’ s 22 | children. 23 || Dated: December 1, 2023 4 Foci) Aharon 25 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 26 27 Green1066.ord 28