Charles Cromer v. Carrebello et al
Filing
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ORDER DISMISSING ACTION Pursuant to Rule 25(A)(1) 30 , signed by Chief Judge Lawrence J. O'Neill on 3/12/2018. (CASE CLOSED)(Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CHARLES CROMER,
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Plaintiff,
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Case No. 1:15-cv-01810-LJO-EPG (PC)
ORDER DISMISSING ACTION
PURSUANT TO RULE 25(A)(1)
v.
(ECF No. 36)
M. TREVINO, et al.,
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Defendants.
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On December 7, 2017, defense counsel (“Counsel”) filed an “Amended Notice of Death
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of Plaintiff Charles Cromer,” which states that Counsel was informed that Plaintiff died on
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September 29, 2017. (ECF No. 36). Counsel also states that a copy of the notice and a copy of
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Plaintiff’s amended complaint was served on Plaintiff’s spouse in the manner identified by
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Federal Rule of Civil Procedure 4. A proof of service is attached. (ECF No. 36, p. 3).
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According to the proof of service, Plaintiff’s spouse was personally served on December 3,
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2017.
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“If a party dies and the claim is not thereby extinguished, the court may order
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substitution of the proper parties. A motion for substitution may be made by any party or by
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the decedent's successor or representative. If the motion is not made within 90 days after
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service of a statement noting the death, the action by or against the decedent must be
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dismissed.” Fed. R. Civ. P. 25(a)(1).
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The party filing the notice of death (or “suggestion of death”) “must serve other parties
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and nonparty successors or representatives of the deceased with a suggestion of death in the
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same manner as required for service of the motion to substitute. Fed. R. Civ. P. 25(a)(1).
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Thus, a party may be served the suggestion of death by service on his or her attorney, Fed. R.
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Civ. P. 5(b), while non-party successors or representatives of the deceased party must be served
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the suggestion of death in the manner provided by Rule 4 for the service of a summons.”
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Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). “[T]he 90 day period provided by Rule
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25(a)(1) will not be triggered against [the decedent’s] estate until the appropriate representative
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of the estate is served a suggestion of death in the manner provided by Federal Rule of Civil
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Procedure 4.” (Id. at 233-34).
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The notice of death was appropriately filed and served more than ninety days ago, and
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no motion for substitution has been made. Accordingly, IT IS ORDERED that this action is
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DISMISSED pursuant to Federal Rule of Civil Procedure 25(a)(1).
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IT IS SO ORDERED.
Dated:
/s/ Lawrence J. O’Neill _____
March 12, 2018
UNITED STATES CHIEF DISTRICT JUDGE
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