Rodriguez v. Hefflefinger, et al.

Filing 72

ORDER DECLINING TO ADOPT 70 FINDINGS AND RECOMMENDATIONS and Requiring Defendants to Submit Proof of Service Within Twenty-One (21) Days signed by District Judge Dale A. Drozd on 11/2/2016. (Jessen, A)

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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. 1:13-cv-00231-DAD-GSA

Plaintiff,
v.
JACK HEFFLEFINGER, et al.,

ORDER DECLINING TO ADOPT FINDINGS
AND RECOMMENDATIONS AND
REQUIRING DEFENDANTS TO SUBMIT
PROOF OF SERVICE

Defendants.
(Doc. No. 70)
Plaintiff was a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge

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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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A notice of plaintiff’s death was placed on the court’s record by his wife, Caroline Grenot,

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on April 25, 2016, in which Ms. Grenot requested information regarding continuation of the suit

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on behalf of plaintiff’s estate. (Doc. No. 67.) On May 4, 2016, defendants filed a notice of

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plaintiff’s death with the court, representing that a “copy of this notice is being served on C.

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Grenot, D. Rodriguez and A. Garcia in accordance with Rule 25(a)(3) of the Federal Rules of

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Civil Procedure.” (Doc. No. 66 at 2.) The individuals identified by defendants in the notice filed

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with the court are, respectively, plaintiff’s wife (Caroline Grenot), his brother (D. Rodriguez), and

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his daughter (A. Garcia). (See id.) On August 11, 2016, the assigned magistrate judge ordered

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defendants to provide evidence that they had properly served these individuals with the notice.
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(Doc. No. 68.) Defendants responded on August 16, 2016 with evidence that A. Garcia had been

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served on May 7, 2016, but reported that service was not effected on either C. Grenot or D.

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Rodriguez. (Doc. No. 69.) On August 17, 2016, the magistrate judge issued findings and

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recommendations recommending the matter be dismissed pursuant to Rule 25(a)(1). (Doc. No.

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70.)

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Rule 25(a)(1) provides for the dismissal of an 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 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,

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233 (9th Cir. 1994). A party may be served with the suggestion of death by service on his or her

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attorney as provided for in Rule 5, while non-party successors or representatives of the deceased

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party must be served the suggestion of death in the manner provided for in Rule 4 for the service

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of a summons. Fed. R. Civ. P. 25(a)(3); Barlow, 39 F.3d at 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 with the court on May 4, 2016.

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(Doc. No. 66.) Defendants have produced evidence that plaintiff’s daughter, Amelia Garcia, was

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served by personal delivery on May 7, 2016. (Doc. No. 69.) However, the evidence defendants

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supplied to the court establishes that while personal delivery of the notice was attempted by

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defendants on plaintiff’s wife, Caroline Grenot, and plaintiff’s brother, David Rodriguez, neither

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were located at their respective addresses, and therefore, neither was served with notice. (Doc.

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No. 69.) Moreover, the documents submitted by defendants do not indicate any other attempts

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were made to serve either Ms. Grenot or Mr. Rodriguez, both of whom defendants represent to be

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non-party successors or representatives, by means other than personal delivery. The court views

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this evidence as being contrary to defendants’ representations that a copy of the notice was being

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served on all three of these individuals. (See Doc. No. 66.)

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

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proper service. (Doc. No. 68.) 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, in fact, failed to

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serve the other individuals. (Doc. No. 69.) As such, defendants have failed to comply with this

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

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

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

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

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

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

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manner reasonably calculated to give actual notice to the person being served. See Fed. R. Civ. P.

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4(e); Cal. Civ. P. Code § 413.30. Defendants may seek leave from the court to effectuate service

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

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the appropriate rules and state statutes identified above. Here, it is clear Ms. Grenot is actually

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aware of this lawsuit because she submitted a notice of death to the court and inquired about the

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continuation of the litigation following her husband’s death. (Doc. No. 67.) Given that

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defendants’ notice of death would advise Ms. Grenot of the time period in which she may file a
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motion for substitution and she has indicated an interest in doing so, it is particularly important

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that service of the notice actually be effected, not merely attempted.

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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. The court declines

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to adopt the findings and recommendations recommending that this action be dismissed pursuant

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to Rule 25(A)(1).

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IT IS SO ORDERED.

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Dated:

November 2, 2016
UNITED STATES DISTRICT JUDGE

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