Bryant v. Yosemite Ranch Investors, LLC et al

Filing 9

ORDER REQUIRING DEFENDANT YOSEMITE RANCH INVESTORS, LLC TO FILE PROOF OF SERVICE OF STATEMENT NOTING DEATH ON PLAINTIFFS SUCCESSOR OR REPRESENTATIVE; ORDER CONTINUING APRIL 9, 2018 SCHEDULING CONFERENCE TO JUNE 29, 2018, AT 1:30 P.M. in Courtroom 9 (SAB) before Magistrate Judge Stanley A. Boone. Signed by Magistrate Judge Stanley A. Boone on 3/13/2018. (Hernandez, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RACHEL BRYANT,
Plaintiff,

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Case No. 1:17-cv-01729-AWI-SAB
ORDER REQUIRING DEFENDANT
YOSEMITE RANCH INVESTORS, LLC TO
FILE PROOF OF SERVICE OF
STATEMENT NOTING DEATH ON
PLAINTIFF’S SUCCESSOR OR
REPRESENTATIVE

v.
YOSEMITE RANCH INVESTORS, LLC, et
al.,

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Defendants.

ORDER CONTINUING APRIL 9, 2018
SCHEDULING CONFERENCE TO JUNE
29, 2018, AT 1:30 P.M.

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(ECF No. 8)
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On December 21, 2017, Plaintiff filed this action. (ECF No. 1.) On February 27, 2018,

19 pursuant to the parties’ stipulation, the scheduling conference was continued to April 9, 2018.
20 (ECF No. 6.) On March 12, 2018, Defendant Yosemite Ranch Investors, LLC filed a statement
21 of death informing the Court that Plaintiff is deceased. (ECF No. 8.)
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Pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure,

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[i]f 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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26 Fed. R. Civ. P. 25(a)(1).
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The Ninth Circuit has held that there are two affirmative steps that trigger the running of

28 the ninety-day period in Rule 25(a)(1). See Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994).

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1 First, a party must formally suggest the death of the party upon the record.

Id. (citations

2 omitted). Second, the suggestion of death must be served on parties in accordance with Rule 5
3 and served on nonparties in accordance with Rule 4. Id. (citation omitted); Fed. R. Civ. P.
4 25(a)(3)).
Here, Defendant Yosemite Ranch Investors, LLC has filed a statement noting the death

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6 of Plaintiff upon the record, but there is no indication that the statement has been served on
7 Plaintiff’s successor or representative. Defendant Yosemite Ranch Investors, LLC shall file on
8 or before March 26, 2018, proof that the statement noting Plaintiff’s death has been served on
9 Plaintiff’s successor or representative. As Plaintiff’s successor or representative has 90 days
10 from the service of the statement noting Plaintiff’s death to file a motion for substitution, the
11 Court shall continue the scheduling conference in this matter to June 29, 2018, at 1:30 p.m.
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Accordingly, IT IS HEREBY ORDERED that:

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1.

Defendant Yosemite Ranch Investors, LLC shall file on or before March 26,

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2018, proof that the statement noting Plaintiff’s death has been served on

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Plaintiff’s successor or representative; and
2.

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The scheduling conference in this matter currently set for April 9, 2018, is

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continued to June 29, 2018, at 1:30 p.m. in Courtroom 9 before Magistrate Judge

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Stanley A. Boone. The parties shall file their joint scheduling report no later than

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seven days prior to the conference.

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IT IS SO ORDERED.

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March 13, 2018
UNITED STATES MAGISTRATE JUDGE

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