Stewart v. Rosen

Filing 18

ORDER OF DISMISSAL. Signed by Judge Jon S. Tigar on July 7, 2017. (Attachments: # 1 Certificate/Proof of Service) (wsn, COURT STAFF) (Filed on 7/7/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KENNETH E. STEWART, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No.16-cv-03979-JST ORDER OF DISMISSAL v. CITY & COUNTY OF SANTA CLARA, et al., Defendants. 12 13 Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. On January 3, 14 2017, the Court dismissed the complaint with leave to amend to address the identified 15 deficiencies. Dkt. No. 14. 16 On February 13, 2017, an amended complaint was filed on behalf of Plaintiff; Plaintiff’s 17 minor son, Kenneth Stewart II; and Plaintiff’s ex-wife, Beatriz Stewart. Dkt. No. 15. The 18 amended complaint stated that Plaintiff passed away on January 27, 2017, id. at 1, and is signed by 19 Beatriz Stewart, id. at 3. The Court struck the amended complaint because it was filed by a non- 20 party to this action. Dkt. No. 16. In this same order, the Court advised Beatriz Stewart and 21 Kenneth E. Stewart II that if they were Plaintiff’s personal representatives or successors-in- 22 interest, they must file a notice of death of Plaintiff with the Court and a motion to substitute for 23 Plaintiff pursuant to Rule 25 of the Federal Rules of Civil Procedure before the action could 24 proceed. Id. at 2. The Court served this order via U.S. Mail on Plaintiff at his address of record, 25 and also served a copy on Beatriz Stewart at the address she provided in the amended complaint. 26 Dkt. No. 16-1. On April 12, 2017, mail sent to the Plaintiff by the Court was returned as 27 undeliverable with a notation that the Plaintiff passed away on January 28, 2017. Dkt. No. 17. 28 Since the filing of the amended complaint, there have been no pleadings filed in this case. 1 2 Neither Beatriz Stewart nor Kenneth Stewart II have communicated with the Court. Pursuant to Rule 3-11 of the Local Rules of the Northern District of California, the Court 3 may, without prejudice, dismiss a complaint when mail directed to the pro se party by the Court 4 has been returned to the Court as not deliverable; and the Court fails to receive within 60 days of 5 this return a written communication from the pro se party indicating a current address. N.D. Cal. 6 L.R. 3-11. More than sixty days have passed since the mail addressed to Plaintiff was returned as 7 undeliverable. The Court has not received a notice from Plaintiff of a new address. The Court has 8 not received a notice of death of Plaintiff or a motion to substitute for Plaintiff. Accordingly, the 9 instant action is DISMISSED without prejudice pursuant to Rule 3-11 of the Northern District 10 United States District Court Northern District of California 11 12 13 14 Local Rules. IT IS SO ORDERED. Dated: July 7, 2017 ______________________________________ JON S. TIGAR United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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