Jones v. PVSP, et al

Filing 154

ORDER Notifying Parties that Ninety-Day Period Within Which to File Motion for Substitution Has Not Been Triggered by Filing of Notice Due to Service Deficiency, signed by Magistrate Judge Sandra M. Snyder on 8/24/2010. (Verduzco, M)

(PC) Jones v. PVSP, et al

Doc. 154

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 Defendants. 14 15 Plaintiff Tyrone Jones is a state prisoner proceeding pro se and in forma pauperis in this civil 16 rights action pursuant to 42 U.S.C. § 1983. On August 23, 2010, Defendants Huang, Loo, McVicar, 17 Neubarth, and Ortiz filed a notice of Plaintiff's death on the record. (Doc. 153.) 18 Rule 25(a)(1) provides for the dismissal of this action if a motion for substitution is not made 19 within ninety days after service of a statement noting Plaintiff's death. Fed. R. Civ. P. 25(a)(1). 20 Two things are required of a party for the running of the ninety-day period to commence: a party 21 must 1) formally suggest the death of the party on the record, and 2) serve the suggestion of death 22 on the other parties and nonparty successors or representatives. Barlow v. Ground, 39 F.3d 231, 233 23 (9th Cir. 1994). In order for the ninety-day period for substitution to be triggered, a party must 24 formally suggest the death of the party upon the record, Fed. R. Civ. P. 25(a)(1), and must serve 25 other parties and nonparty successors or representatives of the deceased with a suggestion of death 26 in the same manner as required for service of the motion to substitute, Fed. R. Civ. P. 25(a)(3). 27 Thus, a party may be served the suggestion of death by service on his or her attorney, Fed. R. Civ. 28 1
Dockets.Justia.com

UNITED STATES DISTRICT COURT

TYRONE JONES, Plaintiff, v. PLEASANT VALLEY STATE PRISON, et al., /

CASE NO. 1:01-cv-05287-AWI-SMS PC ORDER NOTIFYING PARTIES THAT NINETY-DAY PERIOD WITHIN WHICH TO FILE MOTION FOR SUBSTITUTION HAS NOT BEEN TRIGGERED BY FILING OF NOTICE DUE TO SERVICE DEFICIENCY (Doc. 153)

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P. 5(b), while non-party successors or representatives of the deceased party must be served the suggestion of death in the manner provided by Rule 4 for the service of a summons. Fed. R. Civ. P. 25(a)(3); Barlow v. Ground, 39 F.3d at 232-234. Rule 25 requires dismissal absent a motion for substitution within the ninety-day period only if the statement of death was properly served. Unicorn Tales, Inc., v. Bannerjee, 138 F.3d 467, 469-471 (2d Cir. 1998). The parties are HEREBY NOTIFIED that the ninety-day period has not been triggered by the notice because there is no declaration of service or other proof reflecting that there was proper service of the notice on Plaintiff's successor or representative as provided by Rule 4.

IT IS SO ORDERED. Dated: icido3 August 24, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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