Washington v. Apria Healthcare Group, Inc.

Filing 33

ORDER DISMISSING ACTION Pursuant to Rule 25 signed by District Judge Dale A. Drozd on 10/13/2017. CASE CLOSED.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MAC ARTHUR WASHINGTON, 12 Plaintiff, 13 14 No. 1:16-cv-00847-DAD-SKO v. ORDER DISMISSING ACTION PURSUANT TO RULE 25 APRIA HEALTHCARE GROUP, INC., 15 Defendant. 16 17 Plaintiff Mac Arthur Washington commenced this putative class action for violations of 18 the Electronic Funds Transfer Act against defendant Apria Healthcare Group, Inc. (“Apria”), on 19 June 17, 2016. (Doc. No. 1.) In accordance with the court’s order (see Doc. No. 28), on May 2, 20 2017, plaintiff’s counsel filed a formal suggestion of plaintiff’s death upon the record. (Doc. No. 21 29.) Therein, counsel represents that plaintiff Washington passed away after the commencement 22 of this action, and that counsel has been unable to locate a representative of plaintiff’s estate or 23 other successor in interest. (Id.)1 On July 31, 2017, defendant Apria filed a brief regarding 24 dismissal of the action pursuant to Rule 25 of the Federal Rules of Civil Procedure. (Doc. No. 25 30.) On August 7, 2017, the parties jointly filed with the court a notice that ninety days had 26 elapsed since the filing of the formal suggestion of death. (Doc. No. 31.) 27 28 1 In part because of plaintiff’s passing, defendant was never required to file an answer, and no class was ever certified in this action. (See Doc. No. 17.) 1 1 The Federal Rules of Civil Procedure provide, in pertinent part: 2 If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed. 3 4 5 6 Fed. R. Civ. P. 25(a)(1). Thus, two things are required for the running of the ninety-day period to 7 commence: a party must (1) formally suggest the death of the party on the record, and (2) serve 8 the suggestion of death on the other parties and nonparty successors or representatives. Barlow v. 9 Ground, 39 F.3d 231, 233 (9th Cir. 1994); but see In re MGM Mirage Sec. Litig., 282 F.R.D. 600, 10 603 (D. Nev. 2012) (“Barlow does not address the situation where the suggestion of death must 11 be served on a nonparty successor or the representative of the estate when the appropriate person 12 cannot be ascertained at the time the suggestion is filed.”). 13 Based on the record before it, the court finds that plaintiff’s counsel has properly filed on 14 the record a suggestion of the death of plaintiff Washington. However, as counsel represents, he 15 has been unable to identify a representative or successor as of the time the suggestion was filed. 16 Furthermore, plaintiff’s counsel attempted a skip trace investigation in 2016—on plaintiff 17 Washington; plaintiff’s late wife, Valerie Washington; and Ms. Washington’s three known 18 relatives—in an attempt to locate known relatives or next of kin. (See Doc. No. 20 ¶¶ 3–5, Exs. 19 B–D.) In addition, plaintiff’s counsel contacted the Merced County probate court for information 20 regarding plaintiff, but was unable to find any relevant probate or estate documents. (Id. ¶ 6.) 21 Plaintiff’s counsel states that no nonparty successors or representatives of plaintiff Washington 22 have contacted counsel. (Doc. No. 31 at 2.) Finally, defendant Apria reviewed its records 23 regarding plaintiff and was unable to locate information identifying family members, secondary 24 contacts, or other potential nonparty successors or representatives. (See Doc. No. 32.) In view of 25 these representations, the court is satisfied that the parties have diligently conducted a search to 26 discover plaintiff’s successors or representatives. Accordingly, the court finds that the ninety-day 27 period for the filing of a motion for substitution under Rule 25(a)(1) properly commenced on May 28 2, 2017. 2 1 2 3 Ninety days have now passed since counsel’s filing of the suggestion of death, and no motion for substitution has been made by any party. Accordingly: 1. This action is dismissed pursuant to Rule 25(a)(1) of the Federal Rules of Civil 4 5 6 7 Procedure; and 2. The Clerk of the Court is directed to close this case. IT IS SO ORDERED. Dated: October 13, 2017 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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