Dancy v. Scribner, et al

Filing 122

ORDER VACATING Trial Date; ORDER SETTING Status Conference, signed by Magistrate Judge Jennifer L. Thurston on 2/1/2012. The trial set on February 7, 2012 and all associated dates are VACATED; A telephonic status conference in this matter is set on May 17, 2012 at 9:00 a.m.. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SAMUEL DANCY, JR.,

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Case No. 1:07-cv-00716 JLT (PC)

Plaintiff,

ORDER VACATING TRIAL DATE; ORDER
SETTING STATUS CONFERENCE

vs.
A. K. SCRIBNER, et al.,

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Defendants.

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_________________________________/

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On January 27, 2012, Defendants filed a “Statement Noting the Death of a Party.” (Doc.

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117) In it, Defendants reported that Defendant Dr. M. Posner died on December 29, 2011. Id. at 1.

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Though Defendants indicated a willingness to proceed to trial on February 7, 2012 as scheduled, the

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Court held a telephonic conference on February 1, 2012 to be sure that Plaintiff wished to proceed.

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At the conference, Plaintiff indicated that he preferred to proceed against the successors

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of Dr. Posner and was unwilling to dismiss Dr. Posner at this time. Therefore, according Fed. R.

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Civ. P. 25(a) and within the time frames set forth in the Rule, Plaintiff will file a motion under

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Rule 25 to substitute the proper party for Dr. Posner. Plaintiff is required to comply with Rule

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25(a)(3) which requires service of the motion on the relevant parties and the successors.

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Alternatively, should Plaintiff reconsider, he may notify the Court and the parties that he
has decided not to seek the substitution. In this event, he SHALL file a request to dismiss Dr.

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Posner from the litigation.

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ORDER

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Based upon the foregoing, the Court ORDERS:

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1.

The trial set on February 7, 2012 and all associated dates are VACATED;

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2.

If Plaintiff chooses, he may file a motion according to Fed. R. Civ. P. 25 to seek

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to substitute Dr. Posner’s successors into the litigation. If he chooses to proceed

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in this manner, he is cautioned that he must comply with Rule 25(a)(3) and serve a

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copy of the motion on the parties to this case and the successors. Likewise, his

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failure to seek the substitution within the time frame set forth in the Rule may

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result in the Court dismissing the lawsuit against Dr. Posner without the

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substitution;

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3.

Alternatively, Plaintiff may file a request for dismissal of the lawsuit against Dr.

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Posner. In this event, the Court will re-set the trial date as quickly as its calendar

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will allow;

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4.

A telephonic status conference in this matter is set on May 17, 2012 at 9:00 a.m.
Mr. Steele will arrange the telephonic conference call.

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IT IS SO ORDERED.

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Dated: February 1, 2012
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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