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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KATRYNA WOLFF, et al., 12 Plaintiffs, 13 14 v. No. 2:14-cv-03004-KJM-EFB ORDER ELI LILLY AND COMPANY, 15 Defendant. 16 On December 13, 2018, the court ordered that, to determine the survival of this 17 18 action and the potential substitution of a representative party, the parties must comply with 19 Federal Rule of Civil Procedure 25 regarding the death of plaintiff Donald William Ruddell. ECF 20 No. 71. Plaintiffs subsequently filed a suggestion of death on the record. See ECF No. 72. In its 21 order at ECF No. 73, the court explained that this suggestion of death was insufficient to trigger 22 the 90-day period provided by Rule 25(a)(1), because the party suggesting death must also “serve 23 other parties and nonparty successors or representatives of the deceased with a suggestion of 24 death in the same manner as required for service of the motion to substitute.” Id. at 12 (quoting 25 Meyers v. Cty. of Los Angeles, No. CV 10-05225 DMG AJW, 2011 WL 7164461, at *2 (C.D. 26 Cal. Dec. 19, 2011), report and recommendation adopted, No. CV 10-5225 DMG AJW, 2012 27 WL 394857 (C.D. Cal. Feb. 6, 2012) (quoting Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 28 1994))). 1 1 On October 3, 2019, plaintiff’s counsel of record for plaintiff Donald William 2 Ruddell submitted a declaration explaining his multiple unsuccessful attempts to contact Ruddell 3 and his efforts to locate and serve Ruddell’s next of kin. ECF No. 75. In Barlow, the Ninth 4 Circuit expressly declined to address a scenario where the deceased party’s successors could not 5 be ascertained. See McNeal v. Evert, No. 2:05-CV-441-GEB-EFB, 2015 WL 1680496, at *2 6 (E.D. Cal. Apr. 14, 2015) (citing Barlow, 39 F.3d at 234). A deceased party’s counsel is 7 generally expected to know who would be the representative or successor for the deceased party. 8 See Meyers, 2011 WL 7164461, at *3 (citing Yonofsky v. Wernick, 362 F. Supp. 1005, 1011–12 9 (S.D.N.Y. 1973)). However, the court is satisfied by counsel’s representations that he is not 10 aware of any successor or next of kin, and has made a concerted effort to track down surviving 11 relatives of Ruddell, but to no avail. See ECF No. 75 ¶ 7 (describing counsel’s efforts to identify 12 relatives and unsuccessful attempts to contact those relatives). 13 In light of this declaration, the court finds Rule 25’s notice requirements have been 14 satisfied. See McNeal, 2015 WL 1680496, at *4 (“If defendants wish to start [Rule 25’s 90-day] 15 clock, they must either serve a suggestion of death on the proper party for substitution or file a 16 declaration with the court showing that the identity of such a party could not be ascertained.”). 17 Rule 25’s 90-day period begins after a party has satisfied this additional 18 requirement. Barlow, 39 F.3d at 233. The court considers the 90-day time period to have begun 19 October 3, 2019, the day plaintiff’s counsel filed the affidavit satisfying the notice requirement. 20 If the 90-day period expires without substitution by a nonparty successor or representative, the 21 court may then dismiss the matter under Rule 25(a). See, e.g., Gruenberg v. Maricopa Cty. 22 Sheriff's Office, No. CV 06-0397-PHX-SMM (DKD), 2008 WL 2001253, at *2 (D. Ariz. May 7, 23 2008) (dismissing case where plaintiff died approximately ten months prior, more than six 24 months elapsed after notification of plaintiff’s death and no inquiry had been made by a potential 25 successor). 26 27 IT IS SO ORDERED. DATED: October 10, 2019. 28 2 UNITED STATES DISTRICT JUDGE

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