Darden v. Mechael et al

Filing 45

ORDER DISMISSING Action Pursuant to Federal Rule of Civil Procedure 25(a)(1) signed by Chief Judge Lawrence J. O'Neill on 04/23/2019. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GERALDINE DARDEN,

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Plaintiff,

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v.
PHILIPE MECHAEL, et al.,

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Defendants.

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Plaintiff Geraldine Darden filed the instant action on April 11, 2017, pursuant to 42 U.S.C. §

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) Case No. 1:17-cv-00505-LJO-SAB (PC)
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) ORDER DISMISSING ACTION PURSUANT TO
) FEDERAL RULE OF CIVIL PROCEDURE 25(a)(1)
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1983.

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On January 14, 2019, Defendants filed a notice of Plaintiff’s death. (ECF No. 40.)

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Rule 25(a)(1) provides for the dismissal of Defendant Spaeder from this action if a motion for

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substitution is not made within ninety days after service of a statement noting Spaeder’s death. Fed.

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R. Civ. P. 25(a)(1). Two things are required of a party 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 the

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

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Ground, 39 F.3d 231, 233 (9th Cir. 1994). In order for the ninety-day period for substitution to be

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triggered, a party must formally suggest the death of the party upon the record, Fed. R. Civ. P.

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25(a)(1), and must serve other parties and nonparty successors or representatives of the deceased with

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a suggestion of death in the same manner as required for service of the motion to substitute, Fed. R.
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Barlow v.

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Civ. P. 25(a)(3). Thus, a party may be served with the suggestion of death by service on his or her

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attorney, Fed. R. Civ. P. 5(b), while non-party successors or representatives of the deceased party must

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be served the suggestion of death in the manner provided by Rule 4 for the service of a summons.

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Fed. R. Civ. P. 25(a)(3); Barlow, 39 F.3d at 232-234. Rule 25 requires dismissal absent a motion for

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substitution within the ninety-day period only if the statement of death was properly served. Unicorn

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Tales, Inc., v. Bannerjee, 138 F.3d 467, 469-471 (2d Cir. 1998).

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Here, Defendants filed a notice of Plaintiff’s death on January 14, 2019, and served a copy on

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Plaintiff’s next of kin, Doris Kelly. (ECF No. 40, 41, 42.) No motion for substitution has been filed,

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and the ninety-day time period has expired.

Accordingly, this action is HEREBY ORDERED

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DISMISSED pursuant to Federal Rule of Civil Procedure 25(a)(1), and the Clerk of the Court shall

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enter judgment.

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IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill _____

April 23, 2019

UNITED STATES CHIEF DISTRICT JUDGE

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