Sang v. Baker

Filing 84

ORDER VACATING Pretrial Dispositive Motion Deadline, and Setting Forty-Five Day Deadline for Defendants to File Proof of Service on Plaintiff's Successor or Representative re 81 & 82 , signed by Magistrate Judge Sheila K. Oberto on 2/2/2012. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THON NGOT SANG,

CASE NO. 1:06-cv-01496-SKO PC

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Plaintiff,

ORDER VACATING PRETRIAL
DISPOSITIVE MOTION DEADLINE, AND
SETTING FORTY-FIVE DAY DEADLINE
FOR DEFENDANTS TO FILE PROOF OF
SERVICE ON PLAINTIFF’S SUCCESSOR
OR REPRESENTATIVE

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v.
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R. BAKER, et al.,
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Defendants.
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(Docs. 81 and 82)
/

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This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Thon Ngot Sang,

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a former state prisoner who was proceeding pro se and in forma pauperis. On January 31, 2012,

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Defendants filed a notice of Plaintiff’s death. Fed. R. Civ. P. 25(a)(1).

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Rule 25(a)(1) provides for the dismissal of this action if a motion for substitution is not made

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within ninety (90) days after service of a statement noting Plaintiff’s death. Fed. R. Civ. P. 25(a)(1).

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Two things are required of a party for the running of the ninety-day period to commence: a party

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must 1) formally suggest the death of the party on the record, and 2) serve the suggestion of death

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on the other parties and nonparty successors or representatives. Barlow v. Ground, 39 F.3d 231, 233

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(9th Cir. 1994).

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For the ninety-day period for substitution to be triggered, a party must formally suggest the

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death of the party upon the record, Fed. R. Civ. P. 25(a)(1), and must serve other parties and

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nonparty successors or representatives of the deceased with a suggestion of death in the same manner

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as required for service of the motion to substitute, Fed. R. Civ. P. 25(a)(3). Thus, a party may be

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served the suggestion of death by service on his or her attorney, Fed. R. Civ. P. 5(b), while non-party
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successors or representatives of the deceased party must be served the suggestion of death in the

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manner provided by Rule 4 for the service of a summons. Fed. R. Civ. P. 25(a)(3); Barlow v.

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Ground, 39 F.3d at 232-234. Rule 25 requires dismissal absent a motion for substitution within the

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ninety-day period only if the statement of death was properly served. Unicorn Tales, Inc., v.

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Bannerjee, 138 F.3d 467, 469-471 (2d Cir. 1998).

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The parties are hereby notified that the ninety-day period has not been triggered by the notice

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because there is no declaration of service or other proof reflecting that there was proper service of

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the notice on Plaintiff’s successor or representative as provided by Rule 4.

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In light of Plaintiff’s death, the pretrial dispositive motion deadline set for March 5, 2012,

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is VACATED, pending Defendants’ compliance with the service requirements under Rule 25.

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Within forty-five (45) days from the date of service of this order, Defendants SHALL file a proof

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of service on Plaintiff’s successor or representative.

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IT IS SO ORDERED.

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Dated:
ie14hj

February 2, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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