Shehee v. Ahlin et al

Filing 57

ORDER NOTIFYING Parties that Ninety-Day Period within which to File Motion for Substitution has not been Triggered by Filing of Notice of Suggestion of Death Due to Service Deficiency; ORDER GRANTING Plaintiff's Request for Entry of Default as to Defendant Tur signed by Magistrate Judge Barbara A. McAuliffe on 12/5/2017. (Sant Agata, S)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY ELL SHEHEE, 12 Plaintiff, 13 14 v. PAMELA AHLIN, et al, 15 (ECF No. 56) ORDER GRANTING PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT AS TO DEFENDANT TUR 17 18 (ECF Nos. 54, 55) 19 21 ORDER NOTIFYING PARTIES THAT NINETY-DAY PERIOD WITHIN WHICH TO FILE MOTION FOR SUBSTITUTION HAS NOT BEEN TRIGGERED BY FILING OF NOTICE OF SUGGESTION OF DEATH DUE TO SERVICE DEFICIENCY Defendants. 16 20 Case No. 1:14-cv-00005-LJO-BAM (PC) I. Background Plaintiff Gregory Ell Shehee (“Plaintiff”) is a state prisoner proceeding pro se and in 22 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 23 Plaintiff’s third amended complaint against Defendants Tur and Nguyen for inadequate medical 24 care arising from events occurring prior to Plaintiff’s surgery in April 2014, in violation of the 25 Fourteenth Amendment. 26 On April 19, 2017, the United States Marshal was ordered to serve process on Plaintiff’s 27 behalf. (ECF No. 38.) On August 3, 2017, the United States Marshal filed a USM-285 form 28 indicating that a copy of the summons and complaint was left with Melanie Varner, caregiver, 1 1 who is documented as a person of suitable age and discretion then residing in Defendant Tur’s 2 usual place of abode. (ECF No. 43.) 3 On September 20, 2017, after Defendant Tur failed to file a response to the third amended 4 complaint, the Court issued an order for Defendant Tur to show cause as to why he failed to file a 5 responsive pleading. (ECF No. 50.) On October 18, 2017, Defendant Nguyen filed a response to 6 the show cause order. (ECF No. 52.) Defendant Nguyen stated that Defendant Tur no longer 7 worked at Department of State Hospitals-Coalinga or for the State of California. In addition, 8 during August and September 2017, defense counsel was unable to contact Defendant Tur by 9 telephone or through personal service. (Id.) 10 In light of this information, on October 30, 2017, the Court issued an order directing the 11 Clerk of the Court to re-serve the September 20, 2017 show cause order on Defendant Tur at the 12 confidential address used by the U.S. Marshal Service on July 6, 2017. (ECF No. 53.) On 13 November 1, 2017, Plaintiff filed the instant request for entry of default and a declaration in 14 support. (ECF Nos. 54, 55.) 15 Thereafter, on November 21, 2017, Defendant Nguyen filed a notice of suggestion of 16 death of Defendant Tur, pursuant to Federal Rule of Civil Procedure 25(a)(1). (ECF No. 56.) 17 Defendant Nguyen, through the Department of State Hospitals, states that upon information and 18 belief, Defendant Tur passed away on September 19, 2017. (Id.) 19 II. 20 Notice of Suggestion of Death Rule 25(a)(1) provides for the dismissal of Defendant Tur from this action if a motion for 21 substitution is not made within ninety days after service of a statement noting Tur’s death. Fed. 22 R. Civ. P. 25(a)(1). Two things are required of a party for the running of the ninety-day period to 23 commence: a party must 1) formally suggest the death of the party on the record, and 2) serve the 24 suggestion of death on the other parties and the nonparty successors or representatives of the 25 deceased. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). In order for the ninety-day period 26 for substitution to be triggered, a party must formally suggest the death of the party upon the 27 record, Fed. R. Civ. P. 25(a)(1), and must serve other parties and nonparty successors or 28 representatives of the deceased with a suggestion of death in the same manner as required for 2 1 service of the motion to substitute, Fed. R. Civ. P. 25(a)(3). Thus, a party may be served with the 2 suggestion of death by service on his or her attorney, Fed. R. Civ. P. 5(b), while non-party 3 successors or representatives of the deceased party must be served the suggestion of death in the 4 manner provided by Rule 4 for the service of a summons. Fed. R. Civ. P. 25(a)(3); Barlow, 39 5 F.3d at 232–34. Rule 25 requires dismissal absent a motion for substitution within the ninety-day 6 period only if the statement of death was properly served. Unicorn Tales, Inc., v. Bannerjee, 138 7 F.3d 467, 469–71 (2d Cir. 1998). While Defendant Nguyen’s notice indicates that service of the notice was made on Dr. 8 9 Juan Tur, there is no indication that the listed address is the residence of any successor or 10 representative of Defendant Tur. (ECF No. 56.) Therefore, as there is no declaration of service 11 or other proof reflecting that there was proper service of the notice on Defendant Tur’s successor 12 or representative as provided by Rule 4, the ninety-day period has not been triggered. 13 III. 14 Request for Entry of Default In his request for entry of default and declaration in support, Plaintiff argues that entry of 15 default is appropriate because the record, (ECF No. 43), shows that Defendant Tur was personally 16 served on July 6, 2017. (ECF No. 55.) Therefore, Defendant Tur’s answer is overdue. Further, 17 Defendant Tur has failed to respond to the Court’s September 20, 2017 order to show cause why 18 default should not be entered. (Id. at 2.) Plaintiff also argues that Defendant Tur is not an infant 19 or incompetent and was properly served with notice by the United States Marshal. (Id. at 7.) 20 As discussed, Defendant Tur was served by the U.S. Marshal on July 6, 2017. (ECF No. 21 43.) Pursuant to Federal Rule of Civil Procedure 12(a)(1)(A)(i), Defendant Tur’s answer or 22 motion under Rule 12 was due within twenty-one (21) days after being served with the summons 23 and complaint. Defendant Tur has not filed an answer or motion under Rule 12 to Plaintiff’s 24 complaint, nor has he filed a response to the Court’s September 20, 2017 order to show cause. 25 Accordingly, the Court will direct the Clerk to enter default against Defendant Tur because he has 26 “failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). 27 /// 28 /// 3 1 2 3 IV. Conclusion and Order Based on the foregoing, IT IS HEREBY ORDERED that: 1. The parties are NOTIFIED that the ninety-day period for substitution pursuant to Rule 4 25(a)(1) has not been triggered by Defendant Nguyen’s notice of suggestion of death, 5 (ECF No. 56); and 6 2. The Clerk of the Court is DIRECTED to enter default against Defendant Tur. 7 8 9 IT IS SO ORDERED. Dated: /s/ Barbara December 5, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?