Marpel v. Saukhla et al

Filing 41

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/27/12 RECOMMENDING that this action be dismissed. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH MARPEL,

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Plaintiff,

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vs.

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No. 2:11-cv-0387 KJM KJN P

SAUKHLA, et al.,

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Defendants.

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/

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FINDINGS AND RECOMMENDATIONS

On April 9, 2012, this court issued the following order in response to a Notice of
Plaintiff’s Death, filed by defendants on March 28, 2012 (Dkt. No. 40 at 1-2):

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On March 28, 2012, [counsel for sole defendant Saukhla] filed a
Notice of Plaintiff’s Death, together with a copy of plaintiff’s death
certificate, and served a copy of the Notice and certificate on
plaintiff’s last address of record, the California Medical Facility.
(See Dkt. No. 38.) Although the Notice states that “[d]efendants’
(sic) counsel is not aware of any next of kin” (Dkt. No. 38 at 1),
service of the Notice upon the record of this action commences the
90-day period for decedent’s successor or representative to file a
motion for substitution. See Fed. R. Civ. P. 25(a)(1). [¶ ]
Plaintiff’s successor and/or representative is hereby informed that
any motion for substitution must be filed with this court on or
before June 26, 2012. If no motion for substitution is filed on or
before June 26, 2012, this action will be dismissed.

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The ninety-day period within which to file a motion for substitution has expired,

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and no motion for substitution has been filed; nor has any other communication been made to the

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court by plaintiff’s successor or representative.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed.
Fed. R. Civ. P. 41(b).

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These findings and recommendations are submitted to the United States District

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Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party, including plaintiff’s

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successor or representative, may file written objections with the court and serve a copy on all

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parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any response to the objections shall be filed and served within 14 days

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after service of the objections. The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATED: June 27, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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marp0387.death.dsms.

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