Wolff et al v. Eli Lilly & Company

Filing 76

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KATRYNA WOLFF, et al.,

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Plaintiffs,

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v.

No. 2:14-cv-03004-KJM-EFB

ORDER

ELI LILLY AND COMPANY,

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Defendant.

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On December 13, 2018, the court ordered that, to determine the survival of this

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action and the potential substitution of a representative party, the parties must comply with

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Federal Rule of Civil Procedure 25 regarding the death of plaintiff Donald William Ruddell. ECF

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No. 71. Plaintiffs subsequently filed a suggestion of death on the record. See ECF No. 72. In its

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order at ECF No. 73, the court explained that this suggestion of death was insufficient to trigger

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the 90-day period provided by Rule 25(a)(1), because the party suggesting death must also “serve

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other parties and nonparty successors or representatives of the deceased with a suggestion of

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death in the same manner as required for service of the motion to substitute.” Id. at 12 (quoting

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Meyers v. Cty. of Los Angeles, No. CV 10-05225 DMG AJW, 2011 WL 7164461, at *2 (C.D.

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Cal. Dec. 19, 2011), report and recommendation adopted, No. CV 10-5225 DMG AJW, 2012

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WL 394857 (C.D. Cal. Feb. 6, 2012) (quoting Barlow v. Ground, 39 F.3d 231, 233 (9th Cir.

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1994))).
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On October 3, 2019, plaintiff’s counsel of record for plaintiff Donald William

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Ruddell submitted a declaration explaining his multiple unsuccessful attempts to contact Ruddell

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and his efforts to locate and serve Ruddell’s next of kin. ECF No. 75. In Barlow, the Ninth

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Circuit expressly declined to address a scenario where the deceased party’s successors could not

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be ascertained. See McNeal v. Evert, No. 2:05-CV-441-GEB-EFB, 2015 WL 1680496, at *2

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(E.D. Cal. Apr. 14, 2015) (citing Barlow, 39 F.3d at 234). A deceased party’s counsel is

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generally expected to know who would be the representative or successor for the deceased party.

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See Meyers, 2011 WL 7164461, at *3 (citing Yonofsky v. Wernick, 362 F. Supp. 1005, 1011–12

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(S.D.N.Y. 1973)). However, the court is satisfied by counsel’s representations that he is not

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aware of any successor or next of kin, and has made a concerted effort to track down surviving

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relatives of Ruddell, but to no avail. See ECF No. 75 ¶ 7 (describing counsel’s efforts to identify

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relatives and unsuccessful attempts to contact those relatives).

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In light of this declaration, the court finds Rule 25’s notice requirements have been

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satisfied. See McNeal, 2015 WL 1680496, at *4 (“If defendants wish to start [Rule 25’s 90-day]

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clock, they must either serve a suggestion of death on the proper party for substitution or file a

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declaration with the court showing that the identity of such a party could not be ascertained.”).

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Rule 25’s 90-day period begins after a party has satisfied this additional

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requirement. Barlow, 39 F.3d at 233. The court considers the 90-day time period to have begun

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October 3, 2019, the day plaintiff’s counsel filed the affidavit satisfying the notice requirement.

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If the 90-day period expires without substitution by a nonparty successor or representative, the

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court may then dismiss the matter under Rule 25(a). See, e.g., Gruenberg v. Maricopa Cty.

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Sheriff's Office, No. CV 06-0397-PHX-SMM (DKD), 2008 WL 2001253, at *2 (D. Ariz. May 7,

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2008) (dismissing case where plaintiff died approximately ten months prior, more than six

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months elapsed after notification of plaintiff’s death and no inquiry had been made by a potential

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successor).

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IT IS SO ORDERED.
DATED: October 10, 2019.

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UNITED STATES DISTRICT JUDGE