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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KENNETH E. STEWART,
Plaintiff,

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United States District Court
Northern District of California

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Case No.16-cv-03979-JST
ORDER OF DISMISSAL

v.
CITY & COUNTY OF SANTA CLARA, et
al.,
Defendants.

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Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. On January 3,

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2017, the Court dismissed the complaint with leave to amend to address the identified

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deficiencies. Dkt. No. 14.

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On February 13, 2017, an amended complaint was filed on behalf of Plaintiff; Plaintiff’s

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minor son, Kenneth Stewart II; and Plaintiff’s ex-wife, Beatriz Stewart. Dkt. No. 15. The

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amended complaint stated that Plaintiff passed away on January 27, 2017, id. at 1, and is signed by

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Beatriz Stewart, id. at 3. The Court struck the amended complaint because it was filed by a non-

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party to this action. Dkt. No. 16. In this same order, the Court advised Beatriz Stewart and

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Kenneth E. Stewart II that if they were Plaintiff’s personal representatives or successors-in-

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interest, they must file a notice of death of Plaintiff with the Court and a motion to substitute for

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Plaintiff pursuant to Rule 25 of the Federal Rules of Civil Procedure before the action could

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proceed. Id. at 2. The Court served this order via U.S. Mail on Plaintiff at his address of record,

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and also served a copy on Beatriz Stewart at the address she provided in the amended complaint.

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Dkt. No. 16-1. On April 12, 2017, mail sent to the Plaintiff by the Court was returned as

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undeliverable with a notation that the Plaintiff passed away on January 28, 2017. Dkt. No. 17.

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Since the filing of the amended complaint, there have been no pleadings filed in this case.

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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

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may, without prejudice, dismiss a complaint when mail directed to the pro se party by the Court

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has been returned to the Court as not deliverable; and the Court fails to receive within 60 days of

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this return a written communication from the pro se party indicating a current address. N.D. Cal.

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L.R. 3-11. More than sixty days have passed since the mail addressed to Plaintiff was returned as

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undeliverable. The Court has not received a notice from Plaintiff of a new address. The Court has

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not received a notice of death of Plaintiff or a motion to substitute for Plaintiff. Accordingly, the

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instant action is DISMISSED without prejudice pursuant to Rule 3-11 of the Northern District

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United States District Court
Northern District of California

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Local Rules.
IT IS SO ORDERED.
Dated: July 7, 2017
______________________________________
JON S. TIGAR
United States District Judge

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