Alarcon v. Davey et al

Filing 48

ORDER DENYING 47 Plaintiff's Motion to Substitute Party for S. Branson signed by Magistrate Judge Jennifer L. Thurston on 6/17/2019. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LOUIS A. ALARCON,

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v.

Case No. 1:16-cv-01461-LJO-JLT
Plaintiff, ORDER DENYING PLAINTIFF’S MOTION
TO SUBSTITUTE PARTY FOR S.
BRANSON

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(Doc. 47)
D. DAVEY, et al.,
Defendants.
On March 12, 2019, Defendants filed a notice of death of Defendant S. Branson. (Doc. 45.)

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Defendants’ counsel indicates he conducted an electronic search of active probate matters but

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located none in S. Branson’s name. Id. He reported also that Jennifer Branson is decedent’s

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daughter. (Id.) On June 7, 2019, Plaintiff filed a motion to substitute S. Branson’s daughter in

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place of Defendant S. Branson in this action. (Doc. 47.)

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Rule 25(a)(1) allows the court to order substitution of the proper party if a party dies and

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the claim is not extinguished. A “proper party” under Rule 25(a)(1) is the legal representative of

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the deceased party; e.g., an executor of the deceased’s will or an administrator of his or her estate.

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Mallonee v. Fahey, 200 F.2d 918, 919-920, & n. 3 (9th Cir.1952). Plaintiff does not provide any

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evidence that decedent’s daughter is decedent’s executor or an administrator of her estate. Thus,

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substitution of the decedent’s daughter is not appropriate under Rule 25(a)(1).

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Rule 25(d) provides for substitution of a successor where the original defendant was sued in

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their official capacity. The First Amended Complaint specifies that Plaintiff sued the decedent

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solely in her individual capacity and seeks monetary damages against her. (Doc. 14, FAC, p. 11.)

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Plaintiff’s specific, limited allegations and claims for monetary damages against the decedent

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confirms that his claim is based on actions taken in her individual capacity. See Ashker v. Cal.

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Dep't of Corr., 112 F.3d 392, 395, n. 3 (9th Cir. 1997) (for Eleventh Amendment immunity

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purposes, where Plaintiff sought money damages and alleged his claims were against defendants

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both in their individual and official capacities, it was concluded that they were sued in their

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individual capacities regardless of indemnification by the state for money damages sought);

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Shoshone-Bannock Tribes v. Fish & Game Comm’n, 42 F.3d 1278, 1284 (9th Cir. 1994) (money

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damages are not available in official capacity suits). Accordingly, substitution of the decedents'

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successors is inappropriate under Rule 25(d).

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Plaintiff has not shown that S. Branson’s daughter is a proper party for substitution under

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Rule 25(a).1 As Plaintiff points to no other authority under which substitution of these persons

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for the decedents would be appropriate, the Court denies Plaintiff’s motion to substitute

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Defendant S. Branson’s daughter in place and instead of the decedent. The denial of Plaintiff's

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motion is without prejudice to the filing a new substitution motion under Rule 25 seeking to

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substitute a proper party for the decedent. Accordingly, Plaintiff’s motion to substitute, filed on

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June 7, 2019 (Doc. 47), is DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

June 17, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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As an aside, Fed.R.Civ.P.26 does not require the remaining defendants to provide the plaintiff evidence
whether S. Branson’s daughter is a proper party for substitutions.

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