McNeal v. Evert, et al

Filing 179

ORDER signed by Magistrate Judge Edmund F. Brennan on 02/11/15 denying 172 Motion for substitution. Within 30 days of the date of this order, defense counsel shall endeavor to discover the identity of the proper party for substitution and either ; a) serve the notice of suggestion of death on that party, along with re-service on plaintiff and filing with the court or b) file a declaration documenting the steps taken to discover the proper party's identity and why such person's iden tity could not be discovered. Should defense counsel file a new notice of suggestion of death with service on the proper party for substitution, plaintiff shall have 90 days from the date of service of such notice to file a new motion for substitution. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VERNON WAYNE MCNEAL,

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No. 2:05-cv-441-GEB-EFB P

Plaintiff,
v.

ORDER

EVERT, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Defense counsel has filed a Notice of Suggestion of Death of Defendant

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Chatham. ECF No. 167. Plaintiff responded with a motion for substitution of a proper party

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under Federal Rule of Civil Procedure 25(a). ECF No. 172.

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Rule 25(a)(1) of the Federal Rules of Civil Procedure governs the substitution of parties

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after death, providing for substitution where the claim is not extinguished by the death of the

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party. In Robertson v. Wegmann, 436 U.S. 584 (1978), the Supreme Court held that the law of

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the forum state is “the principle reference point in determining survival of civil rights actions”

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under section 1983. Id. at 590; see also Moor v. Alameda County, 411 U.S. 693, 703 n.14 (1973)

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(noting that pursuant to 42 U.S.C. § 1988, state survivorship statutes may allow the survival of

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actions brought under § 1983). Under California law, a cause of action against a person is

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generally not lost by reason of the person’s death. Cal. Civ. Proc. Code § 377.20(a). Therefore,
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Chatham’s death did not extinguish the claim against him, and a motion for substitution is

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appropriate in this case.

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However, to substitute a new defendant for defendant Chatham under Rule 25(a), the

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court must know the party to be substituted. It appears that defense counsel here has not satisfied

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the provision in Rule 25(a)(3) which requires not only the filing of a notice of suggestion of death

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with the court and service of the notice on plaintiff, but also service of the notice on the proper

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party to be substituted in the place of the deceased.1 Barlow v. Ground, 39 F.3d 231, 233 (9th

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Cir. 1994) (a statement noting the death must be served on “nonparty successors or

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representatives of the deceased . . . in the same manner as required for service of the motion to

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substitute.”). In turn, apparently due to that failure, plaintiff has not served his motion for

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substitution on that party (or seek service by the U.S. Marshal) as Rule 25(a)(3) also requires.

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s March 26, 2014 motion for substitution (ECF No. 172) is denied without

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prejudice.

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2. Within 30 days of the date of this order, defense counsel shall endeavor to discover the

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identity of the proper party for substitution and either: (a) serve the notice of

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suggestion of death on that party, along with re-service on plaintiff and filing with the

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court or (b) file a declaration documenting the steps taken to discover the proper

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party’s identity and why such person’s identity could not be discovered.

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3. Should defense counsel file a new notice of suggestion of death with service on the

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proper party for substitution, plaintiff shall have 90 days from the date of service of

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such notice to file a new motion for substitution. In light of plaintiff’s in forma

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Courts have held that executors, administrators or distributees of distributed estates are
proper parties for substitution of a deceased party. See Sequoia Prop. & Equip. Ltd. P’ship v.
United States, No. CV-F-97-5044, 2002 WL 32388132 at *2 (E.D. Cal. June 3 2002); Sinito v.
U.S. Dep’t of Justice, 176 F.3d 512, 516 (D.C. Cir. 1999).
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pauperis status, the court will order service of that motion on the proper party

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identified by defense counsel.

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So ordered.

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DATED: February 11, 2015.

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