Virginia Johnson v. County of Alameda et al

Filing 64

ORDER DISMISSING ACTION. Signed by Magistrate Judge Sallie Kim on 5/29/2018. (mklS, COURT STAFF) (Filed on 5/29/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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VIRGINIA JOHNSON,

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Plaintiff,

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COUNTY OF ALAMEDA, et al.,
Defendants.

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United States District Court
Northern District of California

ORDER DIMISSING ACTION

v.

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Case No. 16-cv-04933-SK

On November 17, 2017, the parties filed a stipulation regarding the case management

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conference in light of the Plaintiff’s death. (Dkt. 54.) Federal Rule of Civil Procedure 25 (“Rule

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25”) provides, in pertinent part:

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If a party dies and the claim is not extinguished, the court may order
substitution of the proper party. A motion for substitution may be
made by any party or by the decedent’s successor or representative.
If the motion is not made within 90 days after service of a statement
noting the death, the action by or against the decedent must be
dismissed.

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Fed. R. Civ. P. 25(a)(1).

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Neither in the stipulation nor at the case management conference held on November 27,
2017, did Plaintiff’s counsel seek an extension of the ninety-day time limit to file a substitution of
party or otherwise inform the Court that he anticipated any difficulty in substituting in a proper
party.
The ninety-day deadline would have expired on February 15, 2018. However, at a further
case management held on January 29, 2018, the Court extended the deadline to substitute in a

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plaintiff to April 23, 2018. The Court admonished Plaintiff’s counsel that the Court would not

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move that deadline again.

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On April 23, 2018, the day of the deadline, the parties filed a further joint case
management statement. At the further case management conference on April 30, 2018, the Court

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noted that the deadline had passed. Nevertheless, the Court provided Plaintiff one more extension

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to substitute in the decedent’s representative or successor to May 25, 2018. The Court

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admonished Plaintiff’s counsel that, if there was no substitution of a proper party by the May 25,

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2018 deadline, the Court would most likely dismiss the case.

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On May 25, 2018, Plaintiff’s counsel requested yet another extension. The Court has

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already provided two extensions of the deadline. Both times, the Court warned Plaintiff that it

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would not provide any further extensions. More than six months have passed since the parties

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informed the Court that the Plaintiff had died. In light of Plaintiff’s failure to substitute in a

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proper party pursuant to Rule 25, the Court HEREBY DISMISSES the action.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: May 29, 2018
______________________________________
SALLIE KIM
United States Magistrate Judge

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