Wolff et al v. Eli Lilly & Company
ORDER signed by District Judge Kimberly J. Mueller on 10/10/19 FINDING that Rule 25's notice requirements have been satisfied and CONSIDERING the 90-day time period to have begun 10/2/19. If the 90-day period expires without substitution by a nonparty successor or representative, thecourt may then dismiss the matter under Rule 25(a). (Coll, A)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
KATRYNA WOLFF, et al.,
ELI LILLY AND COMPANY,
On December 13, 2018, the court ordered that, to determine the survival of this
action and the potential substitution of a representative party, the parties must comply with
Federal Rule of Civil Procedure 25 regarding the death of plaintiff Donald William Ruddell. ECF
No. 71. Plaintiffs subsequently filed a suggestion of death on the record. See ECF No. 72. In its
order at ECF No. 73, the court explained that this suggestion of death was insufficient to trigger
the 90-day period provided by Rule 25(a)(1), because the party suggesting death must also “serve
other parties and nonparty successors or representatives of the deceased with a suggestion of
death in the same manner as required for service of the motion to substitute.” Id. at 12 (quoting
Meyers v. Cty. of Los Angeles, No. CV 10-05225 DMG AJW, 2011 WL 7164461, at *2 (C.D.
Cal. Dec. 19, 2011), report and recommendation adopted, No. CV 10-5225 DMG AJW, 2012
WL 394857 (C.D. Cal. Feb. 6, 2012) (quoting Barlow v. Ground, 39 F.3d 231, 233 (9th Cir.
On October 3, 2019, plaintiff’s counsel of record for plaintiff Donald William
Ruddell submitted a declaration explaining his multiple unsuccessful attempts to contact Ruddell
and his efforts to locate and serve Ruddell’s next of kin. ECF No. 75. In Barlow, the Ninth
Circuit expressly declined to address a scenario where the deceased party’s successors could not
be ascertained. See McNeal v. Evert, No. 2:05-CV-441-GEB-EFB, 2015 WL 1680496, at *2
(E.D. Cal. Apr. 14, 2015) (citing Barlow, 39 F.3d at 234). A deceased party’s counsel is
generally expected to know who would be the representative or successor for the deceased party.
See Meyers, 2011 WL 7164461, at *3 (citing Yonofsky v. Wernick, 362 F. Supp. 1005, 1011–12
(S.D.N.Y. 1973)). However, the court is satisfied by counsel’s representations that he is not
aware of any successor or next of kin, and has made a concerted effort to track down surviving
relatives of Ruddell, but to no avail. See ECF No. 75 ¶ 7 (describing counsel’s efforts to identify
relatives and unsuccessful attempts to contact those relatives).
In light of this declaration, the court finds Rule 25’s notice requirements have been
satisfied. See McNeal, 2015 WL 1680496, at *4 (“If defendants wish to start [Rule 25’s 90-day]
clock, they must either serve a suggestion of death on the proper party for substitution or file a
declaration with the court showing that the identity of such a party could not be ascertained.”).
Rule 25’s 90-day period begins after a party has satisfied this additional
requirement. Barlow, 39 F.3d at 233. The court considers the 90-day time period to have begun
October 3, 2019, the day plaintiff’s counsel filed the affidavit satisfying the notice requirement.
If the 90-day period expires without substitution by a nonparty successor or representative, the
court may then dismiss the matter under Rule 25(a). See, e.g., Gruenberg v. Maricopa Cty.
Sheriff's Office, No. CV 06-0397-PHX-SMM (DKD), 2008 WL 2001253, at *2 (D. Ariz. May 7,
2008) (dismissing case where plaintiff died approximately ten months prior, more than six
months elapsed after notification of plaintiff’s death and no inquiry had been made by a potential
IT IS SO ORDERED.
DATED: October 10, 2019.
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?