Christopher Colon v. Home Depot, U.S.A. Inc.

Filing 42

ORDER signed by Judge Morrison C. England, Jr on 11/18/09 ORDERING dft Home Depot's motion for summary judgment 23 GRANTED; Home Depot's Motion for Summary Judgment 26 is DENIED AS MOOT. Clerk is directed to close this file. CASE CLOSED. (Carlos, K)

1 2 3 4 5 6 7 8 9 10 11 12 Plaintiff, 13 v. 14 15 16 17 18 ----oo0oo---19 20 21 22 23 24 25 26 27 28 All further references to "Rule" or "Rules" are to the Federal Rules of Civil Procedure. 1
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

CHRISTOPHER COLON, an individual,

No. 2:08-cv-02463-MCE-JFM

ORDER

HOME DEPOT, U.S.A., INC., a Delaware corporation and DOES I through XX, inclusive, Defendants.

The Motion to Dismiss filed by Defendant Home Depot U.S.A., Inc. ("Home Depot"), brought pursuant to Federal Rule of Civil Procedure 25(a)(1)1 on grounds that no successor in interest was timely designated following the death of Plaintiff Christopher Colon, came on regularly for hearing on November 12, 2009.

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James T. Conley from the law firm of Payne & Fears LLP, represented Home Depot; John G. Platt of Hangtown Legal appeared for Plaintiff. The parties' December 16, 2008 Joint Status Report ("JSR") (Docket No. 9) revealed that Plaintiff had died, and reported Plaintiff's widow's alleged intent to substitute into the case so that she could proceed on behalf of Plaintiff's estate. On April

8, 2009, after more than 90 days had passed since the filing of the JSR, Home Depot moved to dismiss under Rule 25(a)(1) for failure to make the necessary substitution. The Court denied

that Motion by Memorandum and Order filed May 14, 2009, however, finding that the mere reference to Plaintiff's death in the JSR was insufficient to trigger the 90 day period within which substitution could be made. Instead, we directed Home Depot to

file a copy of the Court's May 14, 2009 Order on Plaintiff's successor in order to start that period running. On July 7, 2009, after we denied Home Depot's subsequent reconsideration request, Home Depot personally served copies of both the Court's Orders and a formal statement suggesting death on Plaintiff's widow, Shawn Colon. After hearing nothing from

Plaintiff's attorney, Mr. Platt, counsel for Home Depot wrote Platt on September 15, 2009 asking whether he intended to make any substitution on behalf of the Colon estate. Mr. Platt did

not respond, and Home Depot filed the instant Motion on October 6, 2009. Under these circumstances, and for the reasons stated on the record at the time of the November 12, 2009 hearing, Home Depot's Motion to Dismiss (Docket No. 23) is GRANTED. 2

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Home Depot satisfied the provisions of Rule 25(a)(1), and Mr. Platt's admitted failure to do anything with respect to substitution, within the requisite 90 period, mandates dismissal. In light of the action's dismissal under Rule 25(a)(1), Home Depot's Motion for Summary Judgment (Docket No. 26), is DENIED as moot. The Clerk of Court is directed to close the file. IT IS SO ORDERED. Dated: November 18, 2009

_____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

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