Schwartz v. Lassen County et al

Filing 20

ORDER signed by Judge Morrison C. England, Jr. on 3/7/2011 ORDERING 6 the First Amended Complaint is DISMISSED without prejudice; Defendants' 13 Motion to Dismiss is DENIED as MOOT; pltf may file the appropriate documents in conpliance with California Code of Civil Procedure Sec 377.32 by 4/8/2011. (Reader, L)

-GGH Schwartz v. Lassen County et al

Doc. 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 Plaintiff, 15 v. 16 17 18 Defendants. 19 20 21 22 23 24 25 26 27 28 ----oo0oo---Plaintiff Nancy Schwartz, on behalf of herself and her son, decedent Michael Parker ("Plaintiff"), brings suit against Lassen County Detention Facility, Steven W. Warren, Sheriff of Lassen LASSEN COUNTY ex rel. the LASSEN COUNTY JAIL (DETENTION FACILITY) et al., ORDER NANCY SCHWARTZ on behalf of herself individually as the mother of MICHAEL PARKER, deceased; and NANCY SCHWARTZ as representative and administrator of MICHAEL PARKER's estate, No. 2:10-cv-03048 MCE-GGH UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

County, and others (collectively, "Defendants") for violations of federal and state law relating to her son's in-custody death. /// /// ///

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Defendants Lassen County and Steven W. Warren, Sheriff of Lassen County have filed a Motion to Dismiss Plaintiff's First Amended Complaint1 for failure to state a claim for relief pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). As instant a threshold matter, to jurisdiction California is not of proper Civil in the

case.

Pursuant

Code

Procedure

§ 377.32, any person "who seeks to commence an action or proceeding . . . as the decedent's successor in interest" must execute an affidavit declaring, among other things, that the "declarant is authorized interest." to act on behalf of the decedent's successor in

Id. § 377.32(B).

Plaintiff failed to file such an

affidavit, and she has not provided the Court with the decedent's death certificate in compliance with the statute. Id. § 377.32(c).

Therefore, the First Amended Complaint is dismissed without prejudice. moot. Defendants' Motion to Dismiss (ECF No. 13) is denied as

Plaintiff may file the appropriate documents in compliance

with California Code of Civil Procedure § 377.32 by April 8, 2011. If no documents are filed by said date, the Clerk is ordered to close the case without further notice to the parties. IT IS SO ORDERED. DATE: March 7, 2011

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

It should be noted that Plaintiff, without leave of Court, amended their original complaint. 2

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