(PC) Lamon v. McTaggart ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY LOUIS LAMON, Case No. 1:22-cv-01421-ADA-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUBSTITUTION OF SERVICE 13 v. WITHOUT PREJUDICE 14 MCTAGGART, et al., (ECF No. 31) 15 Defendants. ORDER DIRECTING DEFENDANTS TO FILE STATUS REPORT REGARDING RE- 16 SERVICE OF NOTICE OF SUGGESTION OF DEATH 17 THIRTY (30) DAYS 18 19 Plaintiff Barry Louis Lamon (“Plaintiff”) is a state prisoner proceeding pro se in this civil 20 rights action pursuant to 42 U.S.C. § 1983. This action was removed from Kings County 21 Superior Court on November 3, 2022. (ECF No. 1.) The second amended complaint has not yet 22 been screened. 23 On April 4, 2023, Defendants filed a notice of suggestion of death of Defendant Tillery. 24 (ECF No. 12.) Finding that there was no declaration of service or other proof reflecting that there 25 was proper service of the notice on Defendant Tillery’s successor or representative as provided by 26 Federal Rule of Civil Procedure 4, on August 21, 2023 the Court notified the parties that the 27 ninety-day period for filing a motion for substitution had not yet been triggered. (ECF No. 30.) 28 /// 1 Currently before the Court is Plaintiff’s motion for substitution of service, filed September 2 7, 2023. (ECF No. 31.) Plaintiff requests an order directing the United States Marshal’s Office to 3 conduct substituted service upon Defendant Tillery’s next of kin. (Id.) Defendants have not yet 4 had the opportunity to file a response, but the Court finds a response unnecessary. The motion is 5 deemed submitted. Local Rule 230(l). 6 At this time, the Court finds that substituted service is not appropriate. Ordinarily, two or 7 three attempts at personal service at a proper place qualifies as “reasonable diligence” and allows 8 substituted service to be made. Kremerman v. White, 71 Cal. App. 5th 358, 373 (Cal. App. 2 9 Dist. 2021) (citing Bein v. Brechtel-Jochim Grp. Inc., 6 Cal. App. 4th 1387, 1391–92 (Cal. 10 1992)). No attempts at personal service have been made, and therefore it does not appear that any 11 party has exercised the required “reasonable diligence” to permit substituted service. 12 Accordingly, IT IS HEREBY ORDERED as follows: 13 1. Plaintiff’s motion for substitution of service, (ECF No. 31), is DENIED, without 14 prejudice; and 15 2. Within thirty (30) days from the date of service of this order, Defendants SHALL FILE a 16 status report indicating the status of re-service of the notice of suggestion of death on 17 Defendant Tillery’s next of kin pursuant to Rule 4 or their intention regarding re-service. 18 IT IS SO ORDERED. 19 20 Dated: September 11, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28