(PC) White v. Mohr ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DELCREE WHITE, Jr., Case No. 2:22-cv-00834-JDP (PC) 12 Plaintiff, ORDER 13 v. DIRECTING THE CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE 14 SETH MOHR, et al.¸ TO THIS MATTER 15 Defendants. FINDINGS AND RECOMMENDATIONS 16 THAT THIS ACTION BE DISMISSED 17 OBJECTIONS DUE WITHIN FOURTEEN DAYS 18 19 20 The court has learned that plaintiff, a former state prisoner proceeding without counsel, 21 passed away during the pendency of this litigation. Pursuant to Federal Rule of Civil Procedure 22 25, plaintiff’s representatives or successors in interest have been given an opportunity to continue 23 litigating this case on his behalf. No such person has notified the court of their intent to do so. 24 Accordingly, I recommend that this action be dismissed. 25 Legal Standard 26 Federal Rule of Civil Procedure 25 establishes the procedure for moving forward with 27 litigation after a party to a civil action has died. It provides that “[i]f a party dies and the claim is 28 not extinguished, the court may order substitution of a proper party.” Fed. R. Civ. P. 25(a). 1 Under California law, which federal courts apply in determining survival of a claim under 42 2 U.S.C. § 1983, a cause of action against a person is generally not extinguished by that person’s 3 death. Cal. Civ. Proc. Code § 377.20(a); see Robertson v. Wegmann, 436 U.S. 584, 590 (1978). 4 Under Rule 25(a)(1), a party must formally suggest the death of the party upon the record 5 and serve the nonparty representatives of the deceased party with the suggestion of death in the 6 manner provided in Federal Rule of Civil Procedure 4 for the service of a summons. Barlow v. 7 Ground, 39 F.3d 231, 233 (9th Cir. 1994). If the descent’s successor or representative do not file 8 a motion for substitution “within 90 days after service of a statement noting the death, the action 9 by or against the decedent must be dismissed.” Fed. R. Civ. P. 25(a). The objective of “Rule 10 25(a)(1) is to alert nonparties to the consequences of the death of a party in a pending lawsuit so 11 that they may act if they desire to preserve the decedent’s claim.” Gruenberg v. Maricopa Cnty. 12 Sheriff’s Off., No. CV 06-0397-PHX-SMM (DKD), 2008 WL 2001253, at *1 (D. Ariz. May 7, 13 2008). 14 Discussion 15 Defendants have satisfied both requirements of Rule 25(a). Defendants filed a formal 16 suggestion of death on the record, ECF No. 31, and served plaintiff’s successors or 17 representatives with a suggestion of death in the same manner as required for service of a motion 18 to substitute, ECF Nos. 32 & 34. It has been over ninety days since proof of service was filed, 19 and no motion for substitution has been filed in accordance with Rule 25(a)(1). See Gardner v. 20 CSP-LAC, No. CV-20-7519-VBF (AGR), 2023 WL 2412776, at *2 (C.D. Cal. Mar. 7, 2023) 21 (dismissing a § 1983 action after defendants complied with the requirements of Rule 25(a) and no 22 one filed a motion for substitution or requested an extension of time to file such a motion). 23 24 25 26 27 28 1 Accordingly, it is ORDERED that the Clerk of Court shall randomly assign a United 2 | States District Judge to this case. 3 Further, it is hereby RECOMMENDED that this action be dismissed without prejudice. 4 | These findings and recommendations are submitted to the United States District Judge assigned to 5 | the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being 6 | served with these findings and recommendations, any party may file written objections with the 7 | court and serve a copy on all parties. Such a document should be captioned “Objections to 8 | Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 9 | served and filed within fourteen days after service of the objections. The parties are advised that 10 | failure to file objections within the specified time may waive the right to appeal the District 11 Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 12 } 1153 (9th Cir. 1991). 13 4 IT IS SO ORDERED. 15 ( 1 ow — Dated: _ May 30, 2024 q———_ 16 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28