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)

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