(PC) Cantu v. Ward ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA JESSE CANTU, Case No. 1:20-cv-00386-JLT-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS THIS ACTION PURSUANT TO 13 v. FEDERAL RULE OF CIVIL PROCEDURE 25(A)(1)1 14 P. WARD, B. XIONG, P. DUNN, D. CORTEZ, J. SOTO, FOURTEEN-DAY OBJECTION PERIOD 15 Defendants. (Doc. No. 55) 16 17 On September 30, 2022, Defendants filed a Suggestion of Death Upon the Record Under 18 Rule 25(a)(1) noting Plaintiff Cantu is deceased. (Doc. No. 55, “Suggestion”). As of this date of 19 these Findings and Recommendations, no further filings have been filed. 20 Under Federal Rule of Civil Procedure 25(a)(1), “[i]f a party dies and the claim is not 21 thereby extinguished, the court may order substitution of the proper parties. A motion for 22 substitution may be made by any party or by the decedent’s successor or representative. If the 23 motion is not made within 90 days after service of a statement noting the death, the action by or 24 against the decedent must be dismissed.” Id. (emphasis added). When a deceased plaintiff is not 25 timely substituted, dismissal is “required.” Smith v. McCotter, 931 F.2d 61 (9th Cir. 1991) 26 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). 28 1 | (unpublished). But the court has discretion whether to issue the dismissal with, or without, 2 | prejudice. Zanowick v. Baxter Healthcare Corp., 850 F.3d 1090, 1095 (9th Cir. 2017) (other 3 | citations omitted). 4 Ordinarily a suggestion of death must be served on decedent’s successors or 5 || representatives. See Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). Here, Plaintiff was 6 | proceeding pro se. Defendants certify under oath that a search of records, including active 7 | probate matters, did not reveal any next of kin for Plaintiff. (Doc. No. 55 at 1-2). While the 8 | Ninth Circuit did not address this issue in Barlow, the court is persuaded here that dismissal, 9 | without prejudice, is appropriate when the non-party successors or representatives cannot be 10 | ascertained. Yonofsky v. Wernick, 362 F.Supp.1005, 1011-12 (S.D. N.Y. July 26, 1973). More 11 || than 90 days have passed and no motion for substitution by the decedent’s successors or 12 | representatives have been made. Dismissal is therefore required under Rule 25(a)(1). 13 Accordingly, it is RECOMMENDED: 14 1. This action be dismissed pursuant to Federal Rule of Civil Procedure 25(a)(1). 15 2. The Clerk of the Court be directed to terminate all deadlines and close this case. 16 NOTICE TO PARTIES 17 These findings and recommendations will be submitted to the United States district judge 18 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 19 | days after being served with these findings and recommendations, a party may file written 20 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 21 | Findings and Recommendations.” Parties are advised that failure to file objections within the 22 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 23 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 Dated: _ January 6, 2023 law ZA. foareh Back 5 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 27 28