Cooley v. City of Vallejo

Filing 70

ORDER signed by Magistrate Judge Dale A. Drozd on 5/15/15 ORDERING that plaintiff's 64 motion for leave to file a second amended complaint is dropped from the court's 5/22/15 calendar without prejudice to the hearing being re-noticed in the event a motion for substitution is timely filed by plaintiff's successor or representative. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FREDERICK MARCELES COOLEY,

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Plaintiff,

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No. 2:14-cv-0240 DAD PS

v.

ORDER

CITY OF VALLEJO, et al.,

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Defendants.

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On April 8, 2015, plaintiff filed a motion in this action for leave to file a second amended

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complaint.1 (Dkt. No. 64.) That motion was scheduled to be heard on the court’s May 22, 2015

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calendar. However, on April 23, 2015, defendants filed a notice that plaintiff passed away on

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April 22, 2015. (Dkt. No. 68.)
According to Federal Rule of Civil Procedure 25(a), when a party to the action passes

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away, a motion for substitution may be made by the decedent’s successor or representative within

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90 days as long as the parties’ claim is not extinguished. FED. R. CIV. P. 25(a). Title 42 U.S.C. '

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1983 does not address the survival of actions upon the death of either the plaintiff or defendant.

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Robertson v. Wegmann, 436 U.S. 584, 589 (1978). In areas such as this on which federal law is

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silent, 42 U.S.C. § 1988 directs federal courts to borrow the law of the forum state unless it is

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The parties have previously consented to Magistrate Judge jurisdiction over this action pursuant
to 28 U.S.C. ' 636(c)(1). (Dkt. No. 22.)
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inconsistent with the purposes of the federal law. Id. In California, “a cause of action for or

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against a person is not lost by reason of the person’s death.” CAL. CIV. PROC. CODE § 377.20.

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Accordingly, plaintiff’s cause of action is not extinguished by his death and his successor or

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representative has 90 days from the filing of defendants’ notice of death on the record to file a

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motion for substitution. The failure to file a timely motion will result in the dismissal of this

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action. FED. R. CIV. P. 25(a)(1).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s April 8, 2015 motion for leave to

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file a second amended complaint (Dkt. No. 64) is dropped from the court’s May 22, 2015

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calendar without prejudice to the hearing being re-noticed in the event a motion for substitution is

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timely filed by plaintiff’s successor or representative.

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Dated: May 15, 2015

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DAD:6
Ddad1\orders.consent\cooley0240.nod.ord.docx

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