McDow v. Harris ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KENNEDY McDOW and LILY McDOW, ) Case No.: 1:21-cv-00119-ADA-SKO ) 12 Plaintiffs, ) ORDER DISMISSING PLAINTIFF LILY McDOW ) 13 v. ) ) 14 BETTY HARRIS, et al., ) 15 Defendants. ) ) 16 ) 17 On August 9, 2022, Defendants Betty Harris, Elnora Holloway, and Rychele Works filed a 18 “Motion to Dismiss Due to the Death of Lily McDow.” (Doc. 38.) The motion attaches a certificate of 19 death of Plaintiff Lily McDow, indicating she died on July 12, 2022. (Id. at 8.) The Court ordered 20 “[a]ny motion to substitute a party for Plaintiff Lily McDow SHALL be filed no later than November 21 7, 2022,” pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure. (Doc. 48 at 2, emphasis 22 omitted.) To date, no motion for substitution has been filed and the time to do so has passed. 23 Pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure, the action may continue if a 24 claim is not extinguished, and “[a] motion for substitution may be made by any party or by the 25 decedent's successor or representative.” If the requirements of Rule 25(a) (1) are met, “[t]he 26 substituted party steps into the same position as [the] original party.” Hilao v. Estate of Marcos, 103 27 F.3d 762, 766 (9th Cir. 1996). However, “[i]f the motion is not made within 90 days after service of a 28 statement noting the death, the action by or against the decedent must be dismissed.” Fed. R. Civ. P. 1 }| 25¢a)(1). 2 Because a statement noting the death of Plaintiff Lily McDow has been filed on the record— 3 || and all parties received service either through the e-filing system or by mail, see Doc. 38 at 7—any 4 || motion for substitution was due no later than November 7, 2022. See Fed. R. Civ. P. 25(a)(1); see al: 5 || Summerfield v. Fackrell, No. 2:10-cv-2884-WBS-EFB, 2012 WL 113281, at *2 (E.D. Cal. Jan. 11, 6 || 2012) (before the 90-day period begins to run, the suggestion of death must be filed on the record anc 7 || served to the other parties); see also Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). □□□□□□□□□□ 8 || Rule 25(a)(1) is stated in mandatory terms, and the party “must be dismissed” given the failure to 9 || timely file a motion for substitution. See id. (emphasis added). 10 Accordingly, it is hereby ORDERED that Plaintiff Lily McDow is DISMISSED from this 11 |] action. 12 13 14 |! IT IS SO ORDERED. 1S Dated: _ December 5, 2022 16 UNITED $TATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28