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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARTHUR T. BUSSIERE,

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Plaintiff,

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v.

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No. 1:13-cv-01565-SKO
ORDER REQUIRING DEFENDANT TO
SUBMIT FORMAL SUGGESTION OF
DEATH AND PROOF OF SERVICE

TIGGS-BROWN,

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Defendant.

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Plaintiff, Arthur T. Bussiere, was a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s First

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Amended Complaint (Doc. 12), filed on June 2, 2014, alleging a claim against Defendant Tiggs-

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Brown for deliberate indifference to Plaintiff’s serious medical needs in violation of the Eighth

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Amendment.

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A docket entry on November 15, 2017, reveals that Plaintiff’s copy of the November 8,

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2017 Order to Show Cause was returned as undeliverable since Plaintiff is deceased. Defendant

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subsequently filed a statement indicating that the CDCR had been contacted and confirmed that

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Plaintiff died on October 22, 2017. (Docs. 116, 117.) However, as discussed below, this action

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cannot be closed at this time.

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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). The ninety-day period begins to run when a party 1) formally suggests the death of the

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party on the record, and 2) serves the suggestion of death on the other parties and nonparty
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successors or representatives. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). Thus, a party

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may be served with the suggestion of death by service on his or her attorney in accordance with

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Rule 5, while non-party successors or representatives of the deceased party must be served with

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the suggestion of death pursuant to Rule 4 which sets forth the methods for the service of a

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summons. Fed. R. Civ. P. 25(a)(3); Barlow, 39 F.3d at 232–34.

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

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a 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, service

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of a summons may be effected by personal delivery (California Civil Procedure Code (CCP)

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

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and mailing another copy to the same individual at the same address (CCP § 415.20); by mail

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(CCP § 415.30); or by publication (CCP § 415.50). Failing these methods, a court may order that

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

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party to be served.” CCP § 413.30.

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Defendant is required to identify the individuals upon whom service of the notice of

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Plaintiff’s death is required and to effectuate proper service on all of those individuals to

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commence the ninety-day period in which Plaintiff’s successors may seek substitution. See

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Barlow, 39 F.3d at 233. If Defendant is unable to effect personal service despite repeated

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attempts, service may be completed via alternate means, as set forth above. If none of the means

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of completing service specifically listed can be completed by Defendant, the Federal Rules of

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Civil Procedure incorporate a California statute which permits 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); CCP § 413.30. Defendant may seek leave to effectuate service in such a manner if

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Defendant can demonstrate the inability to complete service by one of the methods set forth in the
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governing rules and state statutes identified above.

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Accordingly, IT IS HEREBY ORDERED, that Defendant SHALL file a formal notice

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of suggestion of Plaintiff’s death with proof of service thereof on Plaintiff’s nonparty successors

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

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IT IS SO ORDERED.
Dated:

December 4, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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