Dancy v. Scribner, et al

Filing 124

ORDER DISMISSING DEFENDANT POSNER signed by Magistrate Judge Jennifer L. Thurston on 5/1/2012. (Leon-Guerrero, A)

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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,

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ORDER DISMISSING DEFENDANT
POSNER PURSUANT TO RULE 25(a)

vs.
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A.K. SCRIBNER, et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action pursuant to 42 U.S.C. § 1983. On January 27, 2012, Defendants Hasadsri, Reynolds, and

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Smith filed a statement noting the death of Defendant Dr. M. Posner. (Doc. 117). Defendants’

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statement was served on Plaintiff on January 27, 2012. (Id. at 3).

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On February 1, 2012, the Court conducted a telephonic conference with the parties to

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determine whether Plaintiff intended to dismiss Defendant Posner or file a motion to substitute

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Dr. Posner’s estate for the decedent. (Doc. 122). At the conference, Plaintiff indicated he wished

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to proceed against the successors of Defendant Posner. (Id.). Plaintiff was advised that in order

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to do so he would need to comply with the time frames and service requirements set forth in Fed.

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R. Civ. P. 25. Plaintiff was advised that his failure to seek substitution within the time frame set

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forth in Rule 25 may result in the Court dismissing the lawsuit against Defendant Posner without

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the substitution. (Id. at 2). The Court further informed Plaintiff that if he decided not to seek

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substitution, he must file a request to dismiss Defendant Posner from the litigation. (Doc. 122).
Rule 25(a) of the Federal Rules of Civil Procedure states the following:
If a party dies and the claim is not extinguished, the court may order substitution
of the proper party. A motion for substitution may be made by any party or by the
decedent's successor or representative. If the motion is not made within 90 days
after service of a statement noting the death, the action by or against the decedent
must be dismissed.

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Fed. R. Civ. Proc. 25(a).

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The mere passage of 90 days from the date the parties and the Court are aware of a party’s

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death does not warrant dismissal. (See Mobil Oil Corp. v. Lefkowitz, 454 F. Supp. 59 (D.N.Y.

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1977 (finding that the 90 day period begins to run only after a formal “statement of a fact of death

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is filed); see also Acri v. International Asso. of Machinists & Aerospace Workers, 595 F. Supp.

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326, 330 (D. Cal. 1983 (finding that incidental mention of the death in discovery responses does

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not trigger the running of the 90 day period)). Rather, the ninety-day period begins to run only

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after two requirements are met: (1) a party must formally suggest the death of the party on the

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record; and (2) the suggesting party must serve other parties and nonparty successors or

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representatives of the deceased with a suggestion of death. Summerfield v. Fackrell, 2012 U.S.

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Dist. LEXIS 4098, 3-5 (E.D. Cal. Jan. 11, 2012) (citing Barlow v. Ground, 39 F.3d 231, 233 (9th

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Cir. 1994); Fed. R. Civ. P. 25(a)(1); and Anderson v. Aurotek, 774 F.2d 927, 931 (9th Cir.

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1985)).

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accordance with Rule 5 and served on nonparties in accordance with Rule 4. Fed. R. Civ. P.

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25(a)(3).

Rule 25(c) also requires that the statement noting death be served on parties in

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In this case both requirements have been met. Defendants filed a Notice of Death with the

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court on January 27, 2012, which both formally noted the death of the party on the record and

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effected service on Plaintiff in accordance with Rule 5. (Doc. 117). The ninety-day period,

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therefore, began to run on January 27, 2012, and expired on April 26, 2012. No motion of

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substitution was filed before April 26th, nor has any motion of substitution been filed since.

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Given that 90 days have passed since Defendants filed and properly served the statement of death,

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and no motion for substitution has been filed, Rule 25(a)(1) mandates that the Court dismiss the

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action against Defendant Posner. (See Territo v. Sandham, 2009 U.S. Dist. LEXIS 47297, 2-3

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(E.D. Cal. June 4, 2009).
IT IS THEREFORE ORDERED that Plaintiff’s action against Defendant Dr. M. Posner is

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DISMISSED.

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IT IS SO ORDERED.
Dated:

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May 1, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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