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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MAC ARTHUR WASHINGTON,

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Plaintiff,

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No. 1:16-cv-00847-DAD-SKO

v.

ORDER DISMISSING ACTION PURSUANT
TO RULE 25

APRIA HEALTHCARE GROUP, INC.,

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Defendant.

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Plaintiff Mac Arthur Washington commenced this putative class action for violations of

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the Electronic Funds Transfer Act against defendant Apria Healthcare Group, Inc. (“Apria”), on

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June 17, 2016. (Doc. No. 1.) In accordance with the court’s order (see Doc. No. 28), on May 2,

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2017, plaintiff’s counsel filed a formal suggestion of plaintiff’s death upon the record. (Doc. No.

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29.) Therein, counsel represents that plaintiff Washington passed away after the commencement

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of this action, and that counsel has been unable to locate a representative of plaintiff’s estate or

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other successor in interest. (Id.)1 On July 31, 2017, defendant Apria filed a brief regarding

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dismissal of the action pursuant to Rule 25 of the Federal Rules of Civil Procedure. (Doc. No.

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30.) On August 7, 2017, the parties jointly filed with the court a notice that ninety days had

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elapsed since the filing of the formal suggestion of death. (Doc. No. 31.)

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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.)
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The Federal Rules of Civil Procedure provide, in pertinent part:

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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.

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Fed. R. Civ. P. 25(a)(1). Thus, two things are required for the running of the ninety-day period to

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commence: a party must (1) formally suggest the death of the party on the record, and (2) serve

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the suggestion of death on the other parties and nonparty successors or representatives. Barlow v.

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Ground, 39 F.3d 231, 233 (9th Cir. 1994); but see In re MGM Mirage Sec. Litig., 282 F.R.D. 600,

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603 (D. Nev. 2012) (“Barlow does not address the situation where the suggestion of death must

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be served on a nonparty successor or the representative of the estate when the appropriate person

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cannot be ascertained at the time the suggestion is filed.”).

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Based on the record before it, the court finds that plaintiff’s counsel has properly filed on

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the record a suggestion of the death of plaintiff Washington. However, as counsel represents, he

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has been unable to identify a representative or successor as of the time the suggestion was filed.

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Furthermore, plaintiff’s counsel attempted a skip trace investigation in 2016—on plaintiff

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Washington; plaintiff’s late wife, Valerie Washington; and Ms. Washington’s three known

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relatives—in an attempt to locate known relatives or next of kin. (See Doc. No. 20 ¶¶ 3–5, Exs.

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B–D.) In addition, plaintiff’s counsel contacted the Merced County probate court for information

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regarding plaintiff, but was unable to find any relevant probate or estate documents. (Id. ¶ 6.)

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Plaintiff’s counsel states that no nonparty successors or representatives of plaintiff Washington

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have contacted counsel. (Doc. No. 31 at 2.) Finally, defendant Apria reviewed its records

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regarding plaintiff and was unable to locate information identifying family members, secondary

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contacts, or other potential nonparty successors or representatives. (See Doc. No. 32.) In view of

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these representations, the court is satisfied that the parties have diligently conducted a search to

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discover plaintiff’s successors or representatives. Accordingly, the court finds that the ninety-day

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period for the filing of a motion for substitution under Rule 25(a)(1) properly commenced on May

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2, 2017.
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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

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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

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