Richard S. Kindred v. Allenby et al
Filing
119
FINDINGS and RECOMMENDATIONS Recommending that this 16 Action be Dismissed Pursuant to Federal Rule of Civil Procedure 25(A)(1) signed by Magistrate Judge Erica P. Grosjean on 5/22/2023. Referred to Judge Ana de Alba. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
10
RICHARD SCOTT KINDRED,
Plaintiff,
11
12
13
14
v.
Case No. 1:18-cv-00554-ADA-EPG (PC)
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION BE
DISMISSED PURSUANT TO FEDERAL
RULE OF CIVIL PROCEDURE 25(A)(1)
ALLENBY, et al.,
Defendants.
(ECF Nos. 111, 113, 114, & 118)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS
15
16
17
On October 31, 2022, defense counsel (“Counsel”) filed a “Notice of Death of Plaintiff
18
Richard Scott Kindred,” which states that Plaintiff died during the pendency of this action.
19
(ECF No. 111). On February 8, 2023, Counsel filed a declaration, detailing her attempts to
20
serve the Notice of Death on the executor of Plaintiff’s estate. (ECF No. 118). The declaration
21
also includes proofs of service. (Id.).
22
“If a party dies and the claim is not thereby extinguished, the court may order
23
substitution of the proper parties. A motion for substitution may be made by any party or by
24
the decedent’s successor or representative. If the motion is not made within 90 days after
25
service of a statement noting the death, the action by or against the decedent must be
26
dismissed.” Fed. R. Civ. P. 25(a)(1).
27
28
The Notice of Death was filed and served more than ninety days ago, and no motion for
substitution has been made.
1
1
Accordingly, the Court HEREBY RECOMMENDS that:
2
1. This action be DISMISSED pursuant to Federal Rule of Civil Procedure
3
25(a)(1); and
4
5
2. The Clerk of Court be directed to close this case.
These findings and recommendations are submitted to the United States district judge
6
assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen
7
(14) days after being served with these findings and recommendations, any party may file
8
written objections with the Court. Such a document should be captioned “Objections to
9
Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be
10
served and filed within fourteen (14) days after service of the objections. The parties are
11
advised that failure to file objections within the specified time may result in the waiver of rights
12
on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v.
13
Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
14
15
16
IT IS SO ORDERED.
Dated:
May 22, 2023
/s/
UNITED STATES MAGISTRATE JUDGE
17
18
19
20
21
22
23
24
25
26
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?