Owens v. FedEx Office and Print Services, Inc. et al

Filing 27

Findings and Recommendations regarding Dismissal of Action re 1 Complaint, signed by Magistrate Judge Barbara A. McAuliffe on 9/29/2017. Matter referred to Judge Ishii. Objections to F&R due by 10/16/2017. (Rosales, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARTHUR OWENS,

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Plaintiff,
v.

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FEDEX OFFICE AND PRINT SERVICES,
INC., dba FEDEX OFFICE #5181, et al.,

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Defendants.

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Case No. 1:16-cv-01141-AWI-BAM
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
FOURTEEN-DAY DEADLINE

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I.

Background

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Plaintiff Arthur Owens (“Plaintiff”), through counsel, initiated this action under the

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Americans with Disabilities Act on August 4, 2016, against Defendants FedEx Office and Print

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Services, Inc., dba FedEx Office #5181; Irwin Hoffman, as Trustee of the Irwin Hoffman

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Irrevocable Trust Agreement dated 3/19/91, and as Trustee of the Hoffman Trust dated 11/20/98;

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and Terry Poders Hoffman, as Trustee of the Hoffman Trust dated 11/20/98. (Doc. 1).

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Following service of the complaint, Plaintiff reached a settlement with Defendant FedEx

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Office and Print Services, Inc., dba FedEx Office #5181, and filed a notice of voluntary

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dismissal only as to this defendant on October 6, 2016. (Docs. 11, 15.) Based on the notice of

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dismissal, the action was terminated as to Defendant FedEx Office and Print Services, Inc., dba

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FedEx Office #5181, by operation of law pursuant to Federal Rule of Civil Procedure 41(a)(1).

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(Doc. 22.)
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On October 17, 2016, Defendants Irwin Hoffman, as Trustee of the Irwin Hoffman

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Irrevocable Trust Agreement dated 3/19/91, and as Trustee of the Hoffman Trust dated 11/20/98,

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and Terry Poders Hoffman, as Trustee of the Hoffman Trust dated 11/20/98 filed an answer to

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the complaint. (Doc. 16.)

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Shortly thereafter, on October 20, 2016, Plaintiff’s counsel, Tanya E. Moore, filed a

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statement pursuant to Federal Rule of Civil Procedure 25(a) noting the death of Plaintiff Arthur

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Owens during the pendency of this action. (Doc. 18.)

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On November 4, 2016, the Court stayed this action pending substitution into this case of

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a representative on behalf of Plaintiff’s estate. The Court directed Plaintiff’s representative to

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either file a motion for substitution of parties in this action on or before January 17, 2017, or a

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stipulation for dismissal of the action. (Doc. 20.)

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On January 20, 2017, Plaintiff’s counsel filed a declaration indicating that she had been

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in contact with Plaintiff’s brother, Charles Owens, whom she believed to be Plaintiff’s next of

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kin. Mr. Charles Owens advised her that there would be no probate proceeding with regard to

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Plaintiff’s estate and thus no executor or administrator of Plaintiff’s estate would be named.

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Plaintiff’s counsel then advised Mr. Owen that he should seek the advice of an attorney with

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regard to the survival of any of Plaintiff’s claims, and the ability of the estate to obtain any

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recovery in this action. (Doc. 21.) Plaintiff’s counsel mailed a copy of the declaration to Mr.

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Owens by first class mail on January 20, 2017. (Doc. 21-1.)

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On March 7, 2017, the Court held a telephonic status conference. During the conference,

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it was confirmed that no motion for substitution had been filed within the deadline prescribed by

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Federal Rule of Civil Procedure 25(a)(1), and that the Court intended to issue findings and

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recommendations regarding dismissal of this action. (Doc. 24.)

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On April 10, 2017, the Court issued an order directing Plaintiff’s counsel to supplement

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the statement noting a party’s death with evidence of proper service on Plaintiff’s family

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member(s) in compliance with Federal Rules of Civil Procedure 4 and 25(a)(1). (Doc. 25.)

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On April 11, 2017, Plaintiff’s counsel filed a certificate of service indicating that the

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statement noting a party’s death had been served on Charles Owens by mail on the same date.

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(Doc. 26.)

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II.

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Pursuant to Federal Rule of Civil Procedure 25(a), if a party dies and a motion for

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substitution “is not made within 90 days after service of a statement noting the death, the action

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by or against the decedent must be dismissed.” Fed. R. Civ. P. 25(a)(1). “Two things are

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required for the running of the ninety-day period to commence: a party must (1) formally suggest

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the death of the party on the record, and (2) serve the suggestion of death on the other parties and

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nonparty successors or representatives.” Rodriguez v. Hefflefinger, No. 1:13-cv-00231-DAD-

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GSA, 2017 WL 900731, at *1 (E.D. Cal. Mar. 6, 2017) (citing Barlow v. Ground, 39 F.3d 231,

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233 (9th Cir. 1994)). A party may be served with the suggestion of death by service on his or her

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attorney, and a non-party successor or representative of the deceased party must be served the

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suggestion of death in the manner provided for in Rule 4 for the service of a summons. Fed. R.

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Civ. P. 25(a)(3); Barlow, 39 F.3d at 232–34.

Discussion

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Here, Plaintiff’s counsel formally suggested Plaintiff’s death on the record by filing a

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statement on October 20, 2016. (Doc. 18.) Service of the suggestion of death was electronically

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served on defendants’ counsel on the same date. However, as of January 20, 2017, counsel was

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informed that no executor or administrator of Plaintiff’s estate was to be named. Thus, no

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representative of Plaintiff’s estate could be served with the suggestion of death.1 (Doc. 21.)

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Based on this information, the ninety-day period for filing a motion for substitution commenced

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no later than January 20, 2017, and any motion for substitution must have been filed no later than

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April 20, 2017. No motion for substitution of Plaintiff’s representative was filed within the time

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prescribed, and Plaintiff’s next-of-kin also has not filed a motion for substitution. Accordingly,

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this action brought by the decedent, Plaintiff Arthur Owens, must be dismissed. Fed. R. Civ. P.

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25(a)(1).

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Nevertheless, counsel was directed to serve a copy of the suggestion of death on Plaintiff’s next-of-kin.
(Doc. 25.) On April 11, 2017, Plaintiff’s counsel filed a certificate of service indicating that Plaintiff’s next-of-kin,
Charles Owens, was served with the suggestion of death by mail on April 11, 2017. (Doc. 26.)
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III.

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Based on the foregoing, IT IS HEREBY RECOMMENDED that this action be dismissed

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Conclusion and Recommendation

pursuant to Federal Rule of Civil Procedure 25(a)(1).

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these Findings and Recommendations, the parties

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may file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 29, 2017

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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