Hardin v. Gowan, et al.

Filing 37

ORDER signed by Magistrate Judge Edmund F. Brennan on 12/1/2015 ORDERING that within 90 days, defense counsel shall endeavor to discover the identity of the proper nonparty for substitution and either: (a) serve the notice of suggestion of death on that nonparty, along with re-service on plaintiff and filing with the court or (b) file a declaration documenting the steps taken to discover the proper nonparty's identity and explaining why that nonparty's identity could not be discovered.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN HOSEA HARDIN,

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Plaintiff,

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v.

No. 2:14-cv-1796-EFB P

ORDER

REGINALD GOWAN,

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Defendant.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Defense counsel has filed a Notice of Suggestion of Death of Defendant

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Reginald Gowans. ECF No. 36.

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Rule 25(a)(1) of the Federal Rules of Civil Procedure governs the substitution of parties

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after death, providing for substitution where the claim is not extinguished by the death of the

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party. Defense counsel has not satisfied the provision in Rule 25(a)(3) which requires not only

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the filing of a notice of suggestion of death with the court and service of the notice on plaintiff,

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but also service of the notice on the proper nonparty to be substituted in the place of the

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deceased.1 Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994) (a statement noting the death

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Courts have held that executors, administrators or distributees of distributed estates are
proper parties for substitution of a deceased party. See Sequoia Prop. & Equip. Ltd. P’ship v.
United States, No. CV-F-97-5044, 2002 WL 32388132 at *2 (E.D. Cal. June 3 2002); Sinito v.
U.S. Dep’t of Justice, 176 F.3d 512, 516 (D.C. Cir. 1999).
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must be served on “nonparty successors or representatives of the deceased . . . in the same manner

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as required for service of the motion to substitute.”).

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Accordingly, it is hereby ORDERED that within 90 days of the date of this order, defense

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counsel shall endeavor to discover the identity of the proper nonparty for substitution and either:

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(a) serve the notice of suggestion of death on that nonparty, along with re-service on plaintiff and

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filing with the court or (b) file a declaration documenting the steps taken to discover the proper

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nonparty’s identity and explaining why that nonparty’s identity could not be discovered.

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DATED: December 1, 2015.

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