Charles Cromer v. Carrebello et al

Filing 39

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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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 CHARLES CROMER, 8 Plaintiff, 9 10 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., 11 Defendants. 12 13 On December 7, 2017, defense counsel (“Counsel”) filed an “Amended Notice of Death 14 of Plaintiff Charles Cromer,” which states that Counsel was informed that Plaintiff died on 15 September 29, 2017. (ECF No. 36). Counsel also states that a copy of the notice and a copy of 16 Plaintiff’s amended complaint was served on Plaintiff’s spouse in the manner identified by 17 Federal Rule of Civil Procedure 4. A proof of service is attached. (ECF No. 36, p. 3). 18 According to the proof of service, Plaintiff’s spouse was personally served on December 3, 19 2017. 20 “If a party dies and the claim is not thereby extinguished, the court may order 21 substitution of the proper parties. A motion for substitution may be made by any party or by 22 the decedent's successor or representative. If the motion is not made within 90 days after 23 service of a statement noting the death, the action by or against the decedent must be 24 dismissed.” Fed. R. Civ. P. 25(a)(1). 25 The party filing the notice of death (or “suggestion of death”) “must serve other parties 26 and nonparty successors or representatives of the deceased with a suggestion of death in the 27 same manner as required for service of the motion to substitute. Fed. R. Civ. P. 25(a)(1). 28 Thus, a party may be served the suggestion of death by service on his or her attorney, Fed. R. 1 1 Civ. P. 5(b), while non-party successors or representatives of the deceased party must be served 2 the suggestion of death in the manner provided by Rule 4 for the service of a summons.” 3 Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). “[T]he 90 day period provided by Rule 4 25(a)(1) will not be triggered against [the decedent’s] estate until the appropriate representative 5 of the estate is served a suggestion of death in the manner provided by Federal Rule of Civil 6 Procedure 4.” (Id. at 233-34). 7 The notice of death was appropriately filed and served more than ninety days ago, and 8 no motion for substitution has been made. Accordingly, IT IS ORDERED that this action is 9 DISMISSED pursuant to Federal Rule of Civil Procedure 25(a)(1). 10 11 12 13 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ March 12, 2018 UNITED STATES CHIEF DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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