Rodriguez v. Hefflefinger, et al.

Filing 79

ORDER DISMISSING CASE Pursuant to Rule 25 signed by District Judge Dale A. Drozd on 3/3/2017. CASE CLOSED. (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.

ORDER DISMISSING CASE PURSUANT TO
RULE 25

JACK HEFFLEFINGER, et al.,
Defendants.

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Plaintiff Luis Rodriguez, a state prisoner proceeding pro se, filed the complaint

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commencing this action on February 14, 2013, as a civil rights action pursuant to 42 U.S.C.

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§ 1983. (Doc No. 1.) On May 4, 2016, defendants filed a notice of plaintiff’s death on the

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record. (Doc. No. 66.)

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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 the

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

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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 non-

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party successors or representatives of the deceased party must be served the suggestion of death
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in the manner provided for in Rule 4 for the service of a summons. Fed. R. Civ. P. 25(a)(3);

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Barlow, 39 F.3d at 232–34.

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Rule 4 of the Federal Rules of Civil Procedure states that a summons may be served either

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by “following state law for serving a summons in an action brought in courts of general

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jurisdiction in the state where the district court is located or where service is made,” or by doing

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any of the following: (1) “delivering a copy of the summons and of the complaint to the

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individual personally”; (2) “leaving a copy of each at the individual’s dwelling or usual place of

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abode with someone of suitable age and discretion who resides there”; or (3) “delivering a copy

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of each to an agent authorized by appointment or by law to receive service of process.” Fed. R.

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Civ. P. 4(e).
On May 4, 2016, defendants filed a notice of plaintiff’s death and represented in the notice

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that they served members of plaintiff’s family in compliance with Federal Rules of Civil

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Procedure 4 and 25(a)(1). (Doc. No. 66.) However, defendants’ notice was not accompanied by

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any supporting evidence. Therefore, on August 11, 2016, the assigned magistrate judge ordered

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defendants to supplement the notice with evidence of proper service. (Doc. No. 68.) On August

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16, 2016, defendants supplied evidence that A. Garcia, plaintiff’s daughter, was served on May 7,

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2016, but that service was not effected on either Caroline Grenot, plaintiff’s widow, or David

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Rodriguez, plaintiff’s brother. (Doc. No. 69.) On August 17, 2016, the assigned magistrate judge

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issued findings and recommendations recommending the matter nonetheless be dismissed

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pursuant to Rule 25(a)(1). (Doc. No. 70.) On November 3, 2016, the undersigned declined to

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adopt those findings and recommendations and ordered defendants to supplement their notice

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with evidence of proper service upon both Caroline Grenot and David Rodriguez within twenty-

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one days. (Doc. No. 72.)

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On November 7, 2016, defendants filed a proof of service of the notice upon Caroline

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Grenot, showing that she was personally served with the notice on September 14, 2016. (Doc.

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No. 73.) On November 22, 2016, after defendants made diligent but unsuccessful efforts to locate

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and serve David Rodriguez with the notice, defendants filed a motion for an order permitting

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service of the notice upon David Rodriguez by publication, which was granted on January 18,
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2017. (Doc. Nos. 74, 75.) Shortly thereafter, on January 31, 2017, defendants filed a motion for

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reconsideration of the court’s January 18, 2017 order on the grounds that all necessary parties had

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already been personally served and the costs of publication would be wasteful and unnecessary

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under the circumstances. (Doc. No. 76.) In the alternative, defendants requested an order

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approving publication of a shortened version of the notice, in order to reduce defendants’ cost of

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compliance with the court’s order. (Id.)

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On February 28, 2017, the assigned magistrate judge granted the motion for

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reconsideration, relieving defendants of the court’s prior order directing them to serve notice by

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substituted service upon David Rodriquez. (Doc. No. 78.) In that order, the magistrate judge

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found that defendants had complied with the requirements of Rule 25(a)(1) to serve the notice and

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were not required to serve David Rodriguez, as he was not a successor-in-interest under

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California law. (Id.)
Here, plaintiff’s death was suggested upon the record more than ninety days ago, on May

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4, 2016, when defendants filed a notice of plaintiff’s death. (Doc. No. 66.) Based on the facts

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recited above, the undersigned finds that defendants have complied with the requirements of Rule

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25(a)(1) to serve the notice. Fed. R. Civ. P. 25(a)(1). No motion for substitution has been made.

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Therefore, this action will be dismissed pursuant to Rule 25(a)(1).

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Given the foregoing:

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1. This case is dismissed pursuant to Federal Rule of Civil Procedure 25(a)(1);

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2. All pending motions (see Doc. No. 551) are denied as moot; and

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3. The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.

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Dated:

March 3, 2017
UNITED STATES DISTRICT JUDGE

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The findings and recommendations (Doc. No. 65) regarding defendants’ motion for summary
judgment have also been rendered moot by this order.
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