Allen v. Kramer et al

Filing 100

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 12/10/20 RECOMMENDING that plaintiff's motion to substitute deceased defendant Cliff Allenby 97 be denied. Defendant Cliff Allenby be dismissed without prejudice. This case be referred back for further proceedings. Motion 97 referred to Judge Dale A. Drozd. Objections due within 14 days.(Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

Case No. 1:15-cv-01609 DAD JDP (PC)

DAVID ALLEN,

12

Plaintiff,

13

v.

14

FINDINGS AND RECOMMENDATIONS
THAT PLAINTIFF’S MOTION TO
SUBSTITUTE DECEASED DEFENDANT
CLIFF ALLENBY BE DENIED

CLIFF ALLENBY, et al.,
ECF No. 97

15

Defendants.
OBJECTIONS DUE WITHIN 14 DAYS

16

Plaintiff moves to substitute another party for individual capacity and damages claims1

17
18

against the deceased defendant Cliff Allenby. ECF No. 97. Plaintiff has not identified any

19

individual who would be appropriate for substitution. Nonetheless, as there is some authority to

20

suggest that defendants bear that burden,2 the court ordered defendants to attempt to identify a

21

representative. ECF No. 98. The court also ordered plaintiff to serve his motion on the

22

appropriate person once identified. Id. Defendants have now informed the court that they have

23

made a good faith effort to identify Cliff Allenby’s representative but have been unable to do so.

24

ECF No. 99.

25
26
27
28

1

Official capacity claims for injunctive relief are now against substituted defendant Stephanie
Clendenin, Director of California Department of State Hospitals. See Fed. R. Civ. P. 25(d).
2
See Gilmore v. Lockard, 936 F.3d 857, 867 (9th Cir. 2019).
1

1

A motion to substitute under Rule 25 may be denied if substitution, including identifying

2

the appropriate representative, would be unduly burdensome. See Gilmore, 936 F.3d at 867; see

3

also Chobot v. Powers, 169 F.R.D. 263, 267 (W.D.N.Y. 1996) (citing Mullane v. Central

4

Hanover Bank and Trust Co., 339 U.S. 306, 317-18 (1950) (“impracticable and extended searches

5

are not required in the name of due process”)). For example, a district court has found that when

6

defendants “were required to take on some burden in locating” a party’s representative or

7

successor, and their inquires failed to reveal one, the court would not require more. Gruenberg v.

8

Maricopa Cty. Sheriff's Office, No. CV 06-0397-PHX-SMM (DKD), 2008 U.S. Dist. LEXIS

9

40342, at *4 (D. Ariz. May 6, 2008).

10

In this case, the parties have been aware of Cliff Allenby’s death for almost two years.

11

See ECF No. 71 at 2. The court appointed counsel for plaintiff on March 6, 2020. ECF No. 88.

12

Further, the court allowed extended time for plaintiff, aided by counsel, to decide whether to

13

pursue an individual capacity claim against Cliff Allenby’s representative. ECF No. 94.

14

Plaintiff, aided by counsel, was unable to find a representative, but filed the underlying motion

15

nonetheless. See ECF No. 97. The court then ordered defendants to locate a representative. ECF

16

No. 98. Defendants searched probate records, and none were available for Cliff Allenby. ECF

17

No. 99. In sum, no party can identify a representative for the individual capacity claims against

18

deceased defendant Cliff Allenby, notwithstanding good faith efforts to do so. Thus, plaintiff’s

19

motion should be denied because ascertaining the identity of an appropriate representative is

20

unduly burdensome. Under these circumstances, where a defendant is dismissed for inability to

21

locate a representative, adjudication is not on the merits and dismissal should be without

22

prejudice. See Fed. R. Civ. P. 41(b).

23

Accordingly, it is hereby recommended that:

24

1. Plaintiff’s motion to substitute deceased defendant Cliff Allenby, ECF No. 97, be

25

denied.

26

2. Defendant Cliff Allenby be dismissed without prejudice.

27

3. This case be referred back for further proceedings.

28

I submit the findings and recommendations to the district judge under 28 U.S.C.
2

1

§ 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court,

2

Eastern District of California. Within 14 days of the service of the findings and

3

recommendations, the parties may file written objections to the findings and recommendations

4

with the court and serve a copy on all parties. That document should be captioned “Objections to

5

Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings

6

and recommendations under 28 U.S.C. § 636(b)(1)(C).

7
8

IT IS SO ORDERED.

9
Dated:
10
11

December 10, 2020
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3