(PC) Phelps v. Perez et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action Pursuant to Federal Rule of Civil Procedure 25 signed by Magistrate Judge Stanley A. Boone on 02/05/2024. Referred to Judge NODJ; Objections to F&R due within Fourteen-Days. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PAUL PHELPS,
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No. 1:22-cv-01406-NODJ-SAB (PC)
Plaintiff,
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION
PURSUANT TO FEDERAL RULE OF CIVIL
PROCEDURE 25
v.
MANUEL PEREZ, et al.,
(ECF No. 31)
Defendants.
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Plaintiff Paul Phelps is proceeding pro se and in forma pauperis in this civil rights action
filed pursuant to 42 U.S.C. § 1983.
Currently before the Court is Defendants’ notice of Plaintiff’s death on the record, filed
November 2, 2023. (ECF No. 31.)
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I.
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DISCUSSION
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Rule 25(a)(1) of the Federal Rules of Civil Procedure provides for the dismissal of an
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action if a motion for substitution is not made within ninety days after service of a statement
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noting plaintiff's death. Fed. R. Civ. P. 25(a)(1). Two things are required for the running of the
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ninety-day period to commence: a party must (1) formally suggest the death of the party on the
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record, and (2) serve the suggestion of death on the other parties and nonparty successors or
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representatives. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). A party may be served with
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the suggestion of death by service on his or her attorney as provided for in Rule 5, and non-party
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successors or representatives of the deceased party must be served the suggestion of death in the
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manner provided for in Rule 4 for the service of a summons. Fed. R. Civ. P. 25(a)(3); Barlow, 39
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F.3d at 232–34.
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Rule 4 of the Federal Rules of Civil Procedure states that a summons may be served either
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by “following state law for serving a summons in an action brought in courts of general
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jurisdiction in the state where the district court is located or where service is made,” or by doing
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any of the following: (1) “delivering a copy of the summons and of the complaint to the
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individual personally”; (2) “leaving a copy of each at the individual's dwelling or usual place of
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abode with someone of suitable age and discretion who resides there”; or (3) “delivering a copy
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of each to an agent authorized by appointment or by law to receive service of process.” Fed. R.
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Civ. P. 4(e).
Here, Defendants previously filed a statement of Plaintiff’s death on September 26, 2023.
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However, on September 17, 2023, the Court ordered that the statement of death be served upon
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non-party successors or representatives in the manner provided by Federal Rule of Civil
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Procedure 4 regarding service of the summons.
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As previously stated, on November 2, 2023, Defendants filed a notice of Plaintiff death
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indicating that they learned Plaintiff died intestate with no known heirs. (Travis Decl. ¶ 3.)
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Therefore, Defendants served the Public Administrator of Madera County, Deborah Martinez
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pursuant to California Probate Code section 8461. (Travis Decl. ¶¶ 4-5.) Upon further research,
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Defendants discovered that Plaintiff had an ex-wife, Margaret Parks (Travis Decl. ¶ 6), and
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attempts were made to serve Ms. Parks with the statement noting death, which were ultimately
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unsuccessful.1 (Travis Decl. ¶ 7.)
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Here, Plaintiff's death was suggested upon the record more than ninety days ago, on
November 2, 2023, when Defendants filed a proper notice of Plaintiff’s death. (ECF No. 31.)
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Because Plaintiff died without a will, intestate laws would not apply to the ex-spouse, since the ex-spouse would no
longer be considered a legal heir of the decedent. Cal. Prob. Code § 6122. Therefore, service on Ms. Parks is not
necessary.
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Accordingly, Defendants have complied with the requirements of Rule 25(a)(1) to serve the
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notice. Fed. R. Civ. P. 25(a)(1). No motion for substitution has been made. Therefore, this action
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should be dismissed pursuant to Rule 25(a)(1).
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II.
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RECOMMENDATIONS
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Based on the foregoing, it is HEREBY RECOMMENDED that the instant action be
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dismissed pursuant to Federal Rule of Civil Procedure 25(a)(1) and all pending deadlines be
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vacated.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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(14) days after being served with these Findings and Recommendations, the parties may file
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written objections with the Court. The document should be captioned “Objections to Magistrate
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Judge’s Findings and Recommendations.” The parties are advised that failure to file objections
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within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772
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F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
February 5, 2024
UNITED STATES MAGISTRATE JUDGE
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