Ramirez v. BNSF Railway Company, et al
Filing
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ORDER signed by Judge Garland E. Burrell, Jr on 10/22/2013 ORDERING 15 Status Conference RESET for 11/25/2013 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr. A further status report shall be filed no later than 14 days prior to the Status Conference, in which the parties shall address how this matter should proceed without defendant Vidrio's participation. (Waggoner, D)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GRACIELA RAMIREZ,
Individually, as Successor in
Interest of Decedent ALMA
VIDRIO, and as Personal
Representative of the ESTATE
OF ALMA VIDRIO,
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ORDER CONTINUING STATUS
(PRETRIAL SCHEDULING) CONFERENCE
Plaintiff,
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No. 2:13-cv-00968-GEB-DAD
v.
BNSF RAILWAY COMPANY, and
AGUSTIN VIDRIO,
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Defendant.
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Plaintiff was required to respond to an Order filed
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August
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Defendant Agustin Vidrio or “a sufficient explanation why service
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was not effected [on this Defendant] within [Federal Rule of
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Civil Procedure] 4(m)’s prescribed service period.” (Order 1:23-
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2:3, ECF No. 15.) This filing was due no later than September 13,
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2013. (Id.)
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14,
2013,
by
either
“fil[ing]
proof
of
service”
Plaintiff responded in a September 12, 2013
stating in relevant part:
Plaintiff sued Agustin Vidrio as a nominal
defendant because a wrongful death cause of
action belongs to all of the decedent’s heirs
and
heirs
are,
therefore,
“necessary”
parties. Any heir who chooses not to be a
plaintiff may be joined as a defendant so
that
all
heirs
are
before
the
court.
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for
filing,
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Ruttenberg v. Ruttenberg, 53 Cal. App. 4th
801, 808. “An heir named as a defendant in a
wrongful death action is, in reality, a
plaintiff.” Id.
Plaintiff last had contact with Agustin
Vidiro when Decedent Alma Vidrio was about
five months old (in or around 1992). Prior to
filing
the
Complaint
in
this
matter,
Plaintiff attempted to find and make contact
with Agustin Vidrio. Plaintiff’s daughter and
Decedent’s sister, Diane Guzman, made contact
with his known relative, Andres Vidrio,
regarding the whereabouts of Agustin Vidrio.
Andres Vidrio was unable to provide Ms.
Guzman with an address as to where Agustin
Vidrio could be found. Andres Vidrio informed
her that Agustin Vidrio was living in the
Country of Mexico, but Andres was not able to
provide an address or city. Andres Vidrio did
inform Ms. Guzman that a family member had
contacted Agustin Vidrio to let him know that
Alma had died, but Agustin Vidrio never
contacted Plaintiff or her family regarding
this matter.
Since the filing of the complaint, in an
attempt to serve the complaint, Plaintiff and
Ms. Guzman has made additional attempts to
contact Andres Vidrio to see if he had been
in contact with Agustin and whether any other
family members had information as to where
Agustin Vidrio was living, but the phone
number that she previously had is no longer
active. Plaintiffs’ counsel contacted an
investigator in an attempt to locate Agustin
Vidrio. The investigator performed online and
database research, and found that Agustin
Vidrio’s last-known address was 308 East
Edgeware Road, Los Angeles, CA 90026 in
December 1991. There is no other history of
him living in the United States since that
time.
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In summary, Plaintiff has made multiple
attempts to contact Agustin Vidrio, but has
been unable to locate him.
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(Pl.’s Resp. Re: Service of Def. Agustin Vidrio 1:24-2:20, ECF
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No. 16.) However, Plaintiff does not indicate in his response, or
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a subsequently filed Joint Status Report (ECF No. 17), how this
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action should proceed without Defendant Vidrio’s participation.
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Therefore, the Status Conference scheduled for October
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28, 2013, is rescheduled to commence at 9:00 a.m. on November 25,
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2013. A further joint status report shall be filed no later than
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fourteen (14) days prior to the Status Conference, in which the
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parties
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Defendant Vidrio’s participation.
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shall
address
Dated:
how
this
October 22, 2013
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matter
should
proceed
without
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