Rodriguez v. Hefflefinger, et al.

Filing 75

ORDER granting 74 Motion for authority to serve Notice of Death by Publication signed by Magistrate Judge Gary S. Austin on 1/18/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LUIS RODRIGUEZ,

1:13-cv-00231-DAD-GSA-PC
Plaintiff,

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v.

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ORDER GRANTING DEFENDANTS’ MOTION
FOR AUTHORITY TO SERVE NOTICE OF
DEATH BY PUBLICATION
(ECF. No. 74.)

HEFFLEFINGER, et al.,

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Defendants.

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I.

PROCEDURAL HISTORY

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Luis Rodriguez (“Plaintiff”) was a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on

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February 14, 2013. (ECF No. 1.) The case now proceeds with Plaintiff’s Second Amended

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Complaint filed on July 14, 2014, on the following cognizable claims: (1) retaliation in

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violation of the First Amendment against defendants Anderson, Hefflefinger, Badger,

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McAllister, Tredwell, Sheldon, Speidell, Duncan, Lovofoy, and Huerta; (2) violation of the

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Eighth Amendment against defendant Lovofoy for inadequate medical care; and (3) violation

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of the Eighth Amendment against defendants Hefflefinger and Lovofoy based on conditions of

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confinement. (ECF No. 25.)
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II.

BACKGROUND

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

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

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

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formal notice of Plaintiff’s death with the court. (ECF No. 66.) Defendants produced evidence

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that Plaintiff’s daughter, Amelia Garcia, was served by personal delivery on May 7, 2016.

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(ECF No. 69.) However, the evidence defendants supplied to the court established that while

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personal delivery of the notice was attempted by defendants on Plaintiff’s wife, Caroline

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

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addresses, and therefore, neither was served with notice. (ECF No. 69.) Moreover, the

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documents submitted by defendants did not indicate that any other attempts were made to serve

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either Ms. Grenot or Mr. Rodriguez, both of whom defendants represented to be non-party

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successors or representatives, by means other than personal delivery.

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On November 3, 2016, the Court ordered defendants to supplement their previously

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

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within twenty-one days. (ECF No. 72.) On November 7, 2016, defendants filed a proof of

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service for Plaintiff’s widow, C. Grenot, showing that she was personally served with the

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Notice of Death on September 14, 2016. (ECF No. 73.)

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On November 22, 2016, Defendants filed a motion for an order permitting service of

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Notice of Death of Plaintiff upon David Rodriguez by publication.

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opposition has been filed.

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III.

(ECF No. 74.)

No

RULE 25(a)(1) – SUBSTITUTION OF PARTIES

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Rule 25(a)(1) of the Federal Rules of Civil Procedure provides for the dismissal of an

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action if a motion for substitution is not made within ninety days after service of a statement

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noting plaintiff’s death. Fed. R. Civ. P. 25(a)(1). Two things are required for the running of

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the ninety-day period to commence: a party must (1) formally suggest the death of the party on

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the record, and (2) serve the suggestion of death on the other parties and nonparty successors or

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representatives. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994.) A party may be served
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with the suggestion of death by service on his or her attorney as provided for in Rule 5, and

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non-party successors or representatives of the deceased party must be served the suggestion of

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death in the manner provided for in Rule 4 for the service of a summons. Fed. R. Civ. P.

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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

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

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

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each at the individual’s dwelling or usual place of abode with someone of suitable age and

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

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appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e). In California,

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service of a summons may be effected by personal delivery, California Code of Civil Procedure

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§ 415.10, by leaving a copy of the summons at an office or residence with an appropriate

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person and thereafter mailing another copy to the same individual at the same address, §

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415.20, by mail, § 415.30, or by publication, § 415.50. Additionally, failing these methods, a

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court in California may order a summons be served “in a manner which is reasonably

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calculated to give actual notice to the party to be served.” Cal. Code Civ. Proc., § 413.30.

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California Code of Civil Procedure § 415.50(a) provides that a party may, by court

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order, serve a summons by publication if the party to be served “cannot with reasonable

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diligence be served in another manner” and if one of the following is true: (1) “[a] cause of

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action exists against the party upon whom service is the be made or he or she is a necessary or

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proper party to the action”; (2) “[t]he party to be served has or claims an interest in real or

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personal property in this state that is subject to the jurisdiction of the court . . .” An order for

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publication must direct publication of the summons in a newspaper in California “that is most

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likely to give actual notice to the party to be served.” Id. at § 415.50(b).

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III.

DISCUSSION

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Defendants move for an order permitting service of the Notice of Death of Plaintiff by

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publication in the Los Angeles Times under California Code of Civil Procedure § 415.50.
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Defendants assert that D. Rodriguez, brother of the deceased Plaintiff, is an individual whom

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defendants believe to be most recently domiciled in Los Angeles County. Defendants have

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been unable to locate or contact D. Rodriguez and therefore cannot serve him with the Notice

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of Death directly.

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Defendants argue that D. Rodriguez, Plaintiff’s brother, is not a necessary or proper

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party to this § 1983 action because he is not a successor to Plaintiff’s claim whom Defendants

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were required to serve. Fed. R. Civ. P. 25(a)(1). Nevertheless, to comply with the court’s

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order to serve D. Rodriguez, Defendants request an order permitting them to serve the Notice

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of Death of Plaintiff by publication in the Los Angeles Times.

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Defendants have shown that they diligently attempted to locate and serve D. Rodriguez,

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without success. Therefore, the Court finds good cause to authorize defendants to serve D.

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Rodriguez with the Notice of Death of Plaintiff by publication in the Los Angeles Times.

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Further, the Court shall deem publication of the Notice of Death in a California newspaper

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necessary in light of D. Rodriguez’s last known addresses in Los Angeles County.

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IV.

CONCLUSION

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In light of the foregoing, IT IS HEREBY ORDERED that:

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1.

Defendants are authorized to serve D. Rodriguez with the Notice of Death of

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Plaintiff by publication in the Los Angeles Times, a newspaper published in the

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State of California, at Los Angeles, California, which is hereby designated as the

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newspaper most likely to give actual notice to D. Rodriguez, and that

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publication be made once a week for four weeks;

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2.

It is further ordered that if the address of D. Rodriguez be ascertained prior to

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the expiration of the time for publication of the Notice of Death, that a copy of

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the Notice of Death be forthwith served upon D. Rodriguez in the manner

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provided for in Rule 4 for the service of a summons; and

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///

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///

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///
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3.

The Court deems publication of the Notice of Death in a California newspaper

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necessary in light of D. Rodriguez’s last known addresses in Los Angeles

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County.

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IT IS SO ORDERED.
Dated:

January 18, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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