(SS) Camacho v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TULIA CAMACHO, Case No. 1:20-cv-01582-DAD-BAM 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION 13 v. (Doc. 20) 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 Plaintiff Tula Camacho, now deceased, brought this action for review of a decision of the 18 Commissioner of Social Security denying her application for Social Security Disability Insurance 19 and Supplemental Security Income benefits. On January 14, 2022, Plaintiff’s counsel filed a 20 notice of suggestion of death on the record and indicated that he was unable to locate any eligible 21 relatives who could continue this suit. (Doc. 20.) 22 On January 18, 2022, the Court acknowledged the statement noting the death and 23 indicated that if the claim was not extinguished, then any motion for substitution of the plaintiff 24 should be filed within 90 days after service of the statement noting the death. (Doc. 21.) 25 In the absence of a timely motion, on March 27, 2022, the Court issued an order for 26 Plaintiff’s counsel to show cause why sanctions should not be imposed for failing to comply with 27 the Court’s order. (Doc. 22.) 28 /// 1 On May 2, 2022, Plaintiff’s counsel filed a proof of service. The proof of service 2 indicated that on April 27, 2022, the notice of suggestion of death had been personally served on 3 Kassandra Diaz. (Doc. 23.) Thereafter, on May 9, 2022, Plaintiff’s counsel filed a response to 4 the show cause order. Counsel reported that Plaintiff’s surviving daughter, Kassandra Diaz, had 5 been located and that Ms. Diaz had been personally served with the suggestion of death on April 6 27, 2022. Counsel requested an extension of time to allow Plaintiff’s daughter an opportunity to 7 consider substituting in as a party in this matter. (Doc. 24.) 8 On May 13, 2022, the Court discharged the show cause order and granted counsel’s 9 request for additional time to file a motion for substitution. The Court directed counsel to file 10 appropriate papers to conclude this action in its entirety or papers for substitution of Plaintiff no 11 later than June 17, 2022. (Doc. 25.) To date, no motion for substitution or any other dispositional 12 documents have been filed. 13 Pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure, if a party and the claim 14 is not extinguished, the court may order substitution of the proper party. A motion for 15 substitution “may be made by any party or by the decedent’s successor or representative.” Id. 16 However, “[i]f the motion is not made within 90 days after service of a statement noting the 17 death, the action by or against the decedent must be dismissed.” Fed. R. Civ. P. 25(a)(1). A 18 statement noting death must be served on nonparties as provided in Rule 4 of the Federal Rules of 19 Civil Procedure. Fed. R. Civ. P. 25(a)(3). Rule 4 provides for personal service on an individual. 20 Fed. R. Civ. P. 4(e)(2)(A). 21 The notice of suggestion of death was filed on January 14, 2022, and personally served on 22 Ms. Diaz on April 27, 2022. Although the Court directed that any motion for substitution be filed 23 by June 17, 2022, allowing for the 90-day period following personal service on Plaintiff’s 24 daughter, any motion for substitution was due no later than July 26, 2022. See Fed. R. Civ. P. 25 25(a)(1). As more than ninety (90) days have elapsed since service of the notice of death, and no 26 motion for substitution has been made, the action must be dismissed. 27 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to 28 Federal Rule of Civil Procedure 25(a)(1). 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 3 (14) days after being served with these findings and recommendations, the parties may file 4 written objections with the Court. Such a document should be captioned “Objections to 5 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 6 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 7 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 8 (9th Cir. 1991)). 9 IT IS SO ORDERED. 10 11 Dated: July 28, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28