Rodriguez v. Hubbard et al

Filing 163

ORDER Requiring Defendants to Submit Proof of Service, signed by District Judge Dale A. Drozd on 9/8/16. 21-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LUIS VALENZUELA RODRIGUEZ,

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No. 1:10-cv-00858-DAD-DLB

Plaintiff,
v.

ORDER REQUIRING DEFENDANTS TO
SUBMIT PROOF OF SERVICE

HUBBARD, et al.,
Defendants.

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Plaintiff Luis Valenzuela Rodriguez was a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on

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plaintiff’s third amended complaint against defendants Biter, Phillips, Da Viega, Ozaeta,

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Betzinger, Gregory, Garza, Wegman, Alic, Speidell and Rankin on claims of violation of the free

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exercise clause of the First Amendment, violation of the equal protection clause of the Fourteenth

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Amendment, retaliation in violation of the First Amendment, and deliberate indifference to

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plaintiff’s safety in violation of the Eighth Amendment.

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Defendants filed a statement of plaintiff’s death on May 4, 2016 and represented to the

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court that “[a] copy of this notice was being served on C. Grenot, D. Rodriguez, and A. Garcia, in

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accordance with Rule 25(a)(3) of the Federal Rules of Civil Procedure.” (Doc. No. 159 at 2.)

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These individuals are plaintiff’s wife, brother, and daughter, respectively. (Id.) On August 15,

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2016, the court observed defendant’s notice was not accompanied by any supporting evidence
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that service was made on these individuals. (Doc. No. 160.) Therefore, the court ordered

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defendants to supplement their notice. On August 23, 2016, defendants filed a declaration with

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supporting exhibits. (Doc. No. 161.) These exhibits show service was effected on Garcia, and

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was attempted on Grenot and Rodriguez, but neither of these individuals was actually served.

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(Id.)

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

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made within ninety days after service of a statement noting plaintiff’s death. Fed. R. Civ. P.

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25(a)(1). Two things are required of a party for the running of the ninety-day period to

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commence: a party must 1) formally suggest the death of the party on the record, and 2) serve the

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suggestion of death on the other parties and nonparty successors or representatives. Barlow v.

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Ground, 39 F.3d 231, 233 (9th Cir. 1994). Thus, a party may be served with the suggestion of

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death by service on his or her attorney as provided for in Rule 5, while non-party successors or

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representatives of the deceased party must be served the suggestion of death in the manner

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provided for in Rule 4 for the service of a summons. Fed. R. Civ. P. 25(a)(3); Barlow, 39 F.3d at

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232–34.

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Rule 4 states a summons may be served either by “following state law for serving a

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summons in an action brought in courts of general jurisdiction in the state where the district court

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is located or where service is made,” or by doing any of the following: (1) “delivering a copy of

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the summons and of the complaint to the individual personally”; (2) “leaving a copy of each at the

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individual’s dwelling or usual place of abode with someone of suitable age and discretion who

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resides there”; or (3) “delivering a copy of each to an agent authorized by appointment or by law

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to receive service of process.” Fed. R. Civ. P. 4(e). In California, service of a summons may be

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effected by personal delivery, California Civil Procedure Code § 415.10, by leaving a copy of the

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summons at an office or residence with an appropriate person and thereafter mailing another copy

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to the same individual at the same address, § 415.20, by mail, § 415.30, or by publication,

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§ 415.50. Additionally, failing these methods, a court in California may order a summons be

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served “in a manner which is reasonably calculated to give actual notice to the party to be

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served.” Cal. Civ. P. Code § 413.30.
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Here, defendants filed a formal notice of plaintiff’s death on May 4, 2016. (Doc. No.

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159.) Defendants have produced evidence that plaintiff’s daughter, Amelia Garcia, was served by

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personal delivery on May 7, 2016. (Doc. No. 161 at 4.) However, the evidence defendants

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supplied to the court shows that while personal delivery was attempted on plaintiff’s wife,

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Caroline Grenot, and plaintiff’s brother, David Rodriguez, neither were located at their respective

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addresses, and therefore, neither was served with notice. (Doc. No. 161 at 6, 8.) The attached

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documents do not indicate any other attempts were made to serve either Ms. Grenot or Mr.

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Rodriguez, both of whom appear to be non-party successors or representatives, by means other

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than personal delivery. The court views the facts as being contrary to defendants’ representations

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that a copy of the notice was being served on all three of these individuals. (See Doc. No. 159 at

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2.)

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This court previously ordered defendants to supplement their notice with evidence of

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proper service. (Doc. No. 160.) Instead, defendants supplemented with evidence that they had

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served only one of the individuals indicated, along with evidence that they had failed to serve the

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other individuals. (Doc. No. 161.) As such, defendants have failed to comply with this court’s

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prior order or with Rule 25(a)(3) in a manner that would allow the ninety-day period in which

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plaintiff’s successors may seek substitution to start running. See Barlow, 39 F.3d at 233. If

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defendants are unable to effect personal service, despite repeated attempts, they may complete

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service via alternate means, as identified above. If none of the means of completing service

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specifically listed can be completed by defendants here, the Federal Rules of Civil Procedure

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incorporate a California statute which allows for the court to order service in any manner

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reasonably calculated to give actual notice to the person being served. See Fed. R. Civ. P. 4(e);

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Cal. Civ. P. Code § 413.30. Defendants may seek leave from the court to effectuate service in

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such a manner if they show they are unable to complete service in one of the ways set forth in the

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appropriate rules and state statutes identified above.

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For the reasons set forth above, defendants are HEREBY ORDERED to supplement their

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previously filed notice with evidence of proper service upon both Caroline Grenot and David

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Rodriguez within twenty-one (21) days from the date of service of this order.

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IT IS SO ORDERED.

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Dated:

September 8, 2016
UNITED STATES DISTRICT JUDGE

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