Richard S. Kindred v. Allenby et al

Filing 115

ORDER DIRECTING Defense Counsel to Submit Evidence of Actual Delivery or File Brief Within Twenty-One Days, signed by Magistrate Judge Erica P. Grosjean on 12/14/2022. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:18-cv-00554-ADA-EPG (PC)

RICHARD SCOTT KINDRED,

ORDER DIRECTING DEFENSE COUNSEL
TO SUBMIT EVIDENCE OF ACTUAL
DELIVERY OR FILE BRIEF WITHIN
TWENTY-ONE DAYS

Plaintiff,
v.
ALLENBY, et al.,

(ECF Nos. 113 & 114)
Defendants.

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On November 18, 2022, defense counsel filed a “Notice of Death of Plaintiff Richard

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Scott Kindred,” which states that Richard Scott Kindred (“Plaintiff”) died during the pendency of

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the action. (ECF No. 113). Defense counsel also asserts that the executor of Plaintiff’s estate,

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Bryen Kindred, was served with a copy of the notice and the complaint in this case pursuant to

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Federal Rule of Civil Procedure 4(e)(1) and California Code of Civil Procedure section 415.40.

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(Id.). According to the amended proof of service, Bryen Kindred was served via certified mail on

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November 18, 2022. (ECF No. 114).

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However, defense counsel has not submitted a signed return receipt or other evidence of

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actual delivery. It appears that such a receipt, or other evidence of actual delivery, is required

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when service is made by mail pursuant to section 415.40. Cal. Civ. Proc. Code § 417.20(a) (“If

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served in a manner specified in a statute of this state, as prescribed by Section 417.10, and if

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service is made by mail pursuant to Section 415.40, proof of service shall include evidence

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satisfactory to the court establishing actual delivery to the person to be served, by a signed return
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receipt or other evidence.”).
Accordingly, IT IS HEREBY ORDERED that defense counsel has twenty-one days from

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the date of service of this order to file the signed return receipt (or other evidence of actual

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delivery), or to file a brief explaining why defense counsel believes she is not required to do so.

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IT IS SO ORDERED.
Dated:

December 14, 2022

/s/
UNITED STATES MAGISTRATE JUDGE

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