(PC) Kindred v. Allenby ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RICHARD SCOTT KINDRED, Case No. 1:18-cv-00554-ADA-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS ACTION BE v. DISMISSED PURSUANT TO FEDERAL 12 RULE OF CIVIL PROCEDURE 25(A)(1) ALLENBY, et al., 13 (ECF Nos. 111, 113, 114, & 118) Defendants. 14 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 15 16 17 On October 31, 2022, defense counsel (“Counsel”) filed a “Notice of Death of Plaintiff 18 Richard Scott Kindred,” which states that Plaintiff died during the pendency of this action. 19 (ECF No. 111). On February 8, 2023, Counsel filed a declaration, detailing her attempts to 20 serve the Notice of Death on the executor of Plaintiff’s estate. (ECF No. 118). The declaration 21 also includes proofs of service. (Id.). 22 “If a party dies and the claim is not thereby extinguished, the court may order 23 substitution of the proper parties. A motion for substitution may be made by any party or by 24 the decedent’s successor or representative. If the motion is not made within 90 days after 25 service of a statement noting the death, the action by or against the decedent must be 26 dismissed.” Fed. R. Civ. P. 25(a)(1). 27 The Notice of Death was filed and served more than ninety days ago, and no motion for 28 substitution has been made. 1 Accordingly, the Court HEREBY RECOMMENDS that: 2 1. This action be DISMISSED pursuant to Federal Rule of Civil Procedure 3 25(a)(1); and 4 2. The Clerk of Court be directed to close this case. 5 These findings and recommendations are submitted to the United States district judge 6 |] assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 7 ||(14) days after being served with these findings and recommendations, any party may file 8 || written objections with the Court. Such a document should be captioned “Objections to 9 || Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 10 |] served and filed within fourteen (14) days after service of the objections. The parties are 11 || advised that failure to file objections within the specified time may result in the waiver of rights 12 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 13 || Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 1s IT IS SO ORDERED. ‘6 |! Dated: _May 22, 2023 [Jee Sy — 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28