Rhodes v. Placer County et al

Filing 195

ORDER signed by Chief Judge Morrison C. England, Jr on 3/11/13 ORDERING that plaintiff's successor or representative shall file a motiont for substitution within 90 days; the Clerk shall serve a copy of this order upon plaintiff's address of record as well as upon plaintiff's brother. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KATHLYN A. RHODES,

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Plaintiff,

2:09-cv-0489-MCE-KJN-PS

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v.
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PLACER COUNTY, et al.,
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Defendants.
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ORDER
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Defendants’ three motions for summary judgment were set to be heard on
February 21, 2013. (Dkt. Nos. 170, 177, 178.)

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During the hearing on February 21, 2013, however, defense attorney Renju Jacob

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informed the court on the record that he had been informed that plaintiff Kathlyn Rhodes

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(“plaintiff”) had died on February 16, 2013.1 (Minutes, Feb. 21, 2013, Dkt. No. 193.) The

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undersigned ordered Mr. Jacob to file a declaration and a statement noting plaintiff’s death

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within fourteen days. (Id.)

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This action proceeds before the undersigned pursuant to Eastern District of California
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1), and was reassigned by an order entered
February 9, 2010. (Dkt. No. 36.)
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On March 7, 2013, Mr. Jacob timely filed a Statement noting plaintiff’s death (the

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“Statement”). (Statement, Dkt. No. 194.) Mr. Jacob also filed his own declaration in support of

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the Statement. (Declaration of Renju Jacob (“Jacob Decl.”), Dkt. No. 194-1.) According to Mr.

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Jacob, Placer County’s Office of Vital Statistics and Sacramento County’s Office of Vital

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Statistics have confirmed plaintiff’s death, and have confirmed that Plaintiff’s death certificate is

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available at Sacramento County’s Office of Vital Statistics. (Id.)

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No motion for substitution of the plaintiff has yet been made in this still-pending
case. Federal Rule of Civil Procedure 25(a) provides that:

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If a party dies and the claim is not extinguished, the court
may order substitution of the proper party. A motion for
substitution may be made by any party or by the decedent’s
successor or representative. If the motion is not made within
90 days after service of a statement noting the death, the
action by or against the decedent must be dismissed.

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Fed. R. Civ. P. 25(a).

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Here, Mr. Jacob’s declaration explains that plaintiff’s brother, Scott Rhodes, has

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asked to be provided with “legal notices concerning this case” until someone is appointed as the

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representative of plaintiff’s estate. (Jacob Decl. at 2.) Mr. Rhodes’ business address is: Scott M.

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Rhodes, Esq., Rhodes, Dobbs & Stewart PLLC, Timber Brooke Professional Center, 921 N.W.

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164th Street, Suite B, Edmond, Oklahoma 73013. (Id.) Further, according to Mr. Jacob’s

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declaration, Scott Rhodes has represented that plaintiff’s family does not intend to proceed with

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this lawsuit. (Id.) On March 7, 2013, Mr. Jacob served copies of the Statement and his

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declaration upon plaintiff’s address of record and upon Scott Rhodes at the above-stated address

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via U.S. Mail. (Id. at 3 (Proofs of Service); Dkt. No. 194 at 3.)

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Pursuant to Federal Rule of Civil Procedure 25(a), IT IS HEREBY ORDERED
that:
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Plaintiff’s successor or representative shall file a motion for substitution of

plaintiff within 90 days of service of this order. The motion for substitution must be served in
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compliance with Federal Rule of Civil Procedure 25(a)(3). If no such motion is made within

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these 90 days, the undersigned will issue proposed Findings and Recommendations

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recommending that this action be dismissed. See Fed. R. Civ. P. 25(a) (“If the motion is not

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made within 90 days after service of a statement noting the death, the action by or against the

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decedent must be dismissed.”) (emphasis added).

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2.

The Clerk of The Court shall serve a copy of this order upon plaintiff’s

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address of record, as well as upon plaintiff’s brother, Scott M. Rhodes, at the following address:

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Scott M. Rhodes, Esq.
Rhodes, Dobbs & Stewart PLLC
Timber Brooke Professional Center
921 N.W. 164th Street, Suite B
Edmond, Oklahoma 73013

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IT IS SO ORDERED.
DATED: March 11, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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