(PS) Bell v. Sacramento Housing and Redevelopment Agency ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DELTHENIA BELL, et al., Case No. 2:20-cv-02539-TLN-JDP (PS) 12 Plaintiffs, ORDER DIRECTING DEFENDANTS’ COUNSEL TO FILE A FORMAL NOTICE OF 13 v. PLAINTIFF DELTHENIA BELL’S DEATH AND TO SERVE THAT NOTICE ON HER 14 HOUSING AUTHORITY OF REPRESENTATIVE OR SUCCESSOR SACRAMENTO, et al., 15 Defendants. 16 17 18 Plaintiff Delthenia Bell, proceeding pro se, commenced this action against defendants 19 Sacramento Housing and Redevelopment Agency, Housing Authority of the City of Sacramento, 20 and Housing Authority of the County of Sacramento, alleging various federal and state law claims 21 based on defendants’ refusal to extend her Family Self-Sufficiency Program contract and to 22 provide down payment assistance.1 ECF No. 16. The court was recently notified that Ms. Bell 23 passed away in December 2021. 24 1 The second amended complaint purports to assert claims on behalf of Maurice Massey, 25 Ms. Bell’s adult child. ECF No. 16. Although prior court orders may have suggested that Mr. Massey was a plaintiff to this case, further review of the record reflects that Ms. Bell is the sole 26 plaintiff. Mr. Massey did not sign the second amended complaint and has not otherwise 27 appeared. Furthermore, because Ms. Bell was not an attorney, she could not assert claims on Mr. Massey’s behalf. See C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) 28 (holding that a non-attorney appearing pro se “has no authority to appear as an attorney for others 1 Federal Rule of Civil Procedure 25 establishes the process for moving forward after a 2 party to a civil action has died. Of relevance here, it provides that “[i]f a party dies and the claim 3 is not extinguished, the court may order substitution of a proper party.” Fed. R. Civ. P. 25(a). If 4 the descent’s successor or representative do not file a motion for substitution “within 90 days 5 after service of a statement noting the death, the action by or against the decedent must be 6 dismissed.” Id. Under California law—which federal courts apply in determining survival of a 7 claim under 42 U.S.C. § 1983—a cause of action against a person is generally not extinguished 8 by that person’s death. Cal. Civ. Proc. Code § 377.20(a); see Robertson v. Wegmann, 436 U.S. 9 584, 590 (1978). 10 The Ninth Circuit has explained that Rule 25 requires two affirmative steps to trigger the 11 90-day period: 12 First, a party must formally suggest the death of the party upon the record. Second, the suggesting party must serve other parties and 13 nonparty successors or representatives of the deceased with a suggestion of death in the same manner as required for service of 14 the motion to substitute. Thus, a party may be served the suggestion of death by service on his or her attorney, while 15 nonparty successors or representatives of the deceased party must be served the suggestion of death in the manner provided by Rule 4 16 for the service of a summons. 17 Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994) (internal citations omitted). Under Barlow, 18 defendants have some obligation to identify the plaintiff’s representative or successor and to serve 19 the notice of death on that party. See Gilmore v. Lockard, 936 F.3d 857, 865-68 (9th Cir. 2019). 20 Defendants will be ordered to provide the court with a formal notice of plaintiff’s death 21 and to serve that notice on plaintiff’s representative or successor. If defendants are unable to 22 identify plaintiff’s representative or successor, they shall file a notice with the court explaining 23 the steps that they have taken to locate plaintiff’s representative or successor. See Gruenberg v. 24 Maricopa County Sheriff’s Office, No. CV 06-0397-PHX-SMM (DKD), 2008 WL 2001253 (D. 25 Ariz. May 7, 2008) (dismissing an action without prejudice after the plaintiff died and the 26 defendants could not locate a successor). The court will also vacate the scheduling conference 27 28 than himself.”); Johns v. Cnty. of San Diego, 114 F.3d 874, 876 877 (9th Cir. 1997). 1 | currently set for April 28, 2022. See ECF No. 42. 2 Accordingly, it is hereby ORDERED that: 3 1. Within fourteen days of the date of this order, defendants shall file with the court a 4 | formal notice of plaintiff's death. 5 2. Within thirty days of the date of this order, defendants shall either: 6 a. serve that notice on plaintiff's personal representative or successor in interest; or 7 b. notify the court that plaintiff's representative or successor could not be located 8 | and explain the steps defendants have taken to locate plaintiff's representative or successor. 9 3. This action is stayed for 120 days to allow defendants to comply with this order and 10 | afford plaintiff's representative or successor an opportunity to file a motion for substitution. 11 4. The April 28, 2022, pretrial scheduling conference is vacated. 12 3 IT IS SO ORDERED. 14 ( 4 ie — Dated: _ April 21, 2022 15 JEREMY D. PETERSON 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28