(PC) Phelps v. Perez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL PHELPS, No. 1:22-cv-01406-ADA-SAB (PC) 12 Plaintiff, ORDER REGARDING STATEMENT OF DEATH AND VACATING SETTLEMENT 13 v. CONFERENCE SCHEDULED FOR NOVEMBER 9, 2023, BEFORE 14 MANUEL PEREZ, et al., MAGISTRATE JUDGE BARBARA A. McAULLIFE 15 Defendants. (ECF Nos. 22, 27) 16 17 Plaintiff Paul Phelps is proceeding pro se and in forma pauperis in this civil rights action 18 filed pursuant to 42 U.S.C. § 1983. On September 26, 2023, Defendants’ attorney filed a notice of 19 Plaintiff’s death on the record. (ECF No. 27.) 20 Rule 25(a)(1) provides: 21 If a party dies and the claim is not extinguished, the court may order substitution of the 22 proper party. A motion for substation may be made by any part or by the decedent’s 23 successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decent must be dismissed. 24 In order for the ninety-day period for substitution to be triggered, a party must formally 25 suggest the death of the party upon the record and must serve other parties and nonparty successors 26 or representatives of the deceased with a suggestion of death in the same manner as required for 27 service of the motion to substitute. Fed. R. Civ. P. 25(a)(1); Barlow v. Ground, 39 F.3d 231, 233 28 1 | (9th Cir.1994). Thus, a party may be served the suggestion of death by service on his or her attorney, 2 | Fed. R. Civ. P. 5(b), while non-party successors or representatives of the deceased party must be 3 | served the suggestion of death in the manner provided by Rule 4 for the service of a summons. 4 | Barlow v. Ground, 39 F.3d at 232-234. 5 Rule 25 requires dismissal absent a motion for substitution within the ninety-day period 6 | only if the statement of death was properly served. Unicorn Tales, Inc., v. Bannerjee, 138 F.3d 467, 7 | 469-471 (2d. Cir.1998). 8 Here, the ninety-day period has not been triggered by the notice because there is no 9 | declaration of service or other proof reflecting that there was proper service of the notice on 10 | Plaintiffs successor or representative as provided by Rule 4. In the interest of justice, the Court 11 || will vacate the settlement conference scheduled for November 9, 2023, and set a deadline for 12 | Defendants to comply with the notice requirement. 13 Based on the foregoing, it is HEREBY ORDERED that: 14 1. The settlement conference set for November 9, 2023, is VACATED; 15 2. Within thirty (30) days from the date of service of this order, Defendants may file 16 notice of suggestion of Plaintiffs death with the proper service of notice; and 17 3. If a proper suggestion of death is not filed, the Court will proceed with further 18 scheduling of the case. 19 20 IT IS SO ORDERED. DAM Le 21 | Dated: _September 27, 2023 _ ef UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28