(PS) Bell v. Sacramento Housing and Redevelopment Agency ( 2023 )

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, 13 v. ORDER AND FINDINGS AND RECOMMENDATION 14 HOUSING AUTHORITY OF SACRAMENTO, et al., 15 Defendants. 16 17 18 In December 2021, plaintiff Delthenia Bell, who filed this case pro se, passed away. On 19 April 22, 2022, I ordered defendants to file a formal notice of plaintiff’s death and to serve that 20 notice on her representative or successor.1 ECF No. 45; see Fed. R. Civ. P. 25. I stayed this 21 matter for 120 days to afford plaintiff’s representative or successor an opportunity to a file a 22 motion for substitution. ECF No. 45 at 3. Defendants now move to dismiss this case, ECF 23 No. 49, and I recommend that their motion be granted. 24 Under Rule 25(a)(1), a party must formally suggest the death of the party upon the record 25 and serve the nonparty representatives of the deceased party with the suggestion of death in the 26 1 As explained in my April 22, 2022 order, the operative complaint purports to assert 27 claims on behalf of Maurice Massey, plaintiff’s son. Mr. Massey did not sign the complaint, and plaintiff, who was not an attorney, was not permitted to assert claims on her son’s behalf. See 28 ECF No. 45 at 1 n.1. Accordingly, Mr. Massey is not a plaintiff in this action. 1 manner provided in Federal Rule of Civil Procedure 4. Barlow v. Ground, 39 F.3d 231, 233 (9th 2 Cir. 1994). The objective of “Rule 25(a)(1) is to alert nonparties to the consequences of the death 3 of a party in a pending lawsuit so that they may act if they desire to preserve the decedent’s 4 claim.” Gruenberg v. Maricopa Cnty. Sheriff’s Off., No. CV 06-0397-PHX-SMM (DKD), 2008 5 WL 2001253, at *1 (D. Ariz. May 7, 2008). If the descent’s successor or representative do not 6 file a motion for substitution “within 90 days after service of a statement noting the death, the 7 action by or against the decedent must be dismissed.” Fed. R. Civ. P. 25(a). 8 Defendants have satisfied both requirements under Rule 25. On May 4, 2022, they filed a 9 formal notice of plaintiff’s death, ECF No. 47, and on August 11, 2022, they personally served 10 plaintiff’s representative or successor, Dineen Johnson, with a copy of the notice and the court’s 11 April 22 order, ECF No. 49-5 at 5. More than ninety days have passed since Ms. Johnson was 12 served, and she has not filed a motion for substitution in accordance with Rule 25(a)(1).2 13 Consequently, dismissal is appropriate at this time. See Gardner v. CSP-LAC, No. CV-20-7519- 14 VBF (AGR), 2023 WL 2412776, at *2 (C.D. Cal. Mar. 7, 2023) (dismissing an action after no 15 motion for substitution was filed within ninety days of service on the decedent’s representative in 16 accordance with Rule 25). 17 It is hereby ORDERED that the Clerk of Court is directed to serve a copy of these 18 findings and recommendations on Ms. Johnson at the following address: 19 20 Dineen Johnson 21 4920 North Parkway Sacramento, CA 95823 22 23 24 25 2 Ms. Johnson has filed two letters explaining that she is plaintiff’s sister and is handling 26 plaintiff’s affairs. ECF Nos. 46 & 52. Neither letter suggests that Ms. Johnson intends to move 27 for substitution or otherwise participate in this case. Nevertheless, out of an abundance of caution, I will direct the Clerk of Court to serve Ms. Johnson with a copy of this findings and 28 recommendations. 1 Further, it is hereby RECOMMENDED that: 2 1. Defendants’ motion to dismiss, ECF No. 49, be granted. 3 2. The Clerk of Court be directed to close the case. 4 These findings and recommendations are submitted to the United States District Judge 5 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 6 | after being served with these findings and recommendations, any party may file written 7 | objections with the court and serve a copy on all parties. Such a document should be captioned 8 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 9 | objections shall be served and filed within fourteen days after service of the objections. The 10 | parties are advised that failure to file objections within the specified time may waive the right to 11 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 12 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). 13 4 IT IS SO ORDERED. 15 ( 1 ow — Dated: _ July 21, 2023 q——— 16 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28