Bussiere v. Kokor et al

Filing 118

ORDER Requiring Defendant to Submit Formal Suggestion of Death and Proof of Service signed by Magistrate Judge Sheila K. Oberto on 12/04/2017. Twenty-One Day Deadline. (Flores, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ARTHUR T. BUSSIERE, 10 Plaintiff, 11 v. 12 No. 1:13-cv-01565-SKO ORDER REQUIRING DEFENDANT TO SUBMIT FORMAL SUGGESTION OF DEATH AND PROOF OF SERVICE TIGGS-BROWN, 13 Defendant. 14 15 Plaintiff, Arthur T. Bussiere, was a state prisoner proceeding pro se and in forma pauperis 16 in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s First 17 Amended Complaint (Doc. 12), filed on June 2, 2014, alleging a claim against Defendant Tiggs- 18 Brown for deliberate indifference to Plaintiff’s serious medical needs in violation of the Eighth 19 Amendment. 20 A docket entry on November 15, 2017, reveals that Plaintiff’s copy of the November 8, 21 2017 Order to Show Cause was returned as undeliverable since Plaintiff is deceased. Defendant 22 subsequently filed a statement indicating that the CDCR had been contacted and confirmed that 23 Plaintiff died on October 22, 2017. (Docs. 116, 117.) However, as discussed below, this action 24 cannot be closed at this time. 25 Rule 25(a)(1) provides for the dismissal of this action if a motion for substitution is not 26 made within ninety days after service of a statement noting plaintiff’s death. Fed. R. Civ. P. 27 25(a)(1). The ninety-day period begins to run when a party 1) formally suggests the death of the 28 party on the record, and 2) serves the suggestion of death on the other parties and nonparty 1 1 successors or representatives. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). Thus, a party 2 may be served with the suggestion of death by service on his or her attorney in accordance with 3 Rule 5, while non-party successors or representatives of the deceased party must be served with 4 the suggestion of death pursuant to Rule 4 which sets forth the methods for the service of a 5 summons. Fed. R. Civ. P. 25(a)(3); Barlow, 39 F.3d at 232–34. 6 Rule 4 provides that a summons may be served either by “following state law for serving 7 a summons in an action brought in courts of general jurisdiction in the state where the district 8 court is located or where service is made,” or by doing any of the following: (1) “delivering a 9 copy of the summons and of the complaint to the individual personally”; (2) “leaving a copy of 10 each at the individual’s dwelling or usual place of abode with someone of suitable age and 11 discretion who resides there”; or (3) “delivering a copy of each to an agent authorized by 12 appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e). In California, service 13 of a summons may be effected by personal delivery (California Civil Procedure Code (CCP) 14 § 415.10); by leaving a copy of the summons at an office or residence with an appropriate person 15 and mailing another copy to the same individual at the same address (CCP § 415.20); by mail 16 (CCP § 415.30); or by publication (CCP § 415.50). Failing these methods, a court may order that 17 a summons be served “in a manner which is reasonably calculated to give actual notice to the 18 party to be served.” CCP § 413.30. 19 Defendant is required to identify the individuals upon whom service of the notice of 20 Plaintiff’s death is required and to effectuate proper service on all of those individuals to 21 commence the ninety-day period in which Plaintiff’s successors may seek substitution. See 22 Barlow, 39 F.3d at 233. If Defendant is unable to effect personal service despite repeated 23 attempts, service may be completed via alternate means, as set forth above. If none of the means 24 of completing service specifically listed can be completed by Defendant, the Federal Rules of 25 Civil Procedure incorporate a California statute which permits the court to order service in any 26 manner reasonably calculated to give actual notice to the person being served. See Fed. R. Civ. P. 27 4(e); CCP § 413.30. Defendant may seek leave to effectuate service in such a manner if 28 Defendant can demonstrate the inability to complete service by one of the methods set forth in the 2 1 governing rules and state statutes identified above. 2 Accordingly, IT IS HEREBY ORDERED, that Defendant SHALL file a formal notice 3 of suggestion of Plaintiff’s death with proof of service thereof on Plaintiff’s nonparty successors 4 or representatives within twenty-one (21) days from the date of service of this order. 5 6 7 IT IS SO ORDERED. Dated: December 4, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 .

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