Birch v. Gittere et al

Filing 44

ORDER - If there is no Motion for Substitution within 90 days of the date of this order, the Court will dismiss the case. In the meantime, the Court denies all pending Motions (ECF Nos. 6 , 11 , 15 , 19 , 20 , 22 , 23 , 28 , [35 ], 36 , 38 ) as moot with leave for the moving party to request reinstatement of their motion within seven days from the Court's Order granting any Motion to Substitute the proper party. Signed by Chief Judge Miranda M. Du on 1/13/2021. (Copies have been distributed pursuant to the NEF - AB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BRUCE BIRCH,

Case No. 3:19-cv-00643-MMD-WGC
Plaintiff,

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ORDER

v.
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WILLIAM GITTERE, et al.,
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Defendants.
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On October 21, 2019, Plaintiff Bruce Birch, then a prisoner in custody of the

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Nevada Department of Corrections (“NDOC”), initiated this prisoner civil rights action

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under 42 U.S.C. § 1983. (ECF No. 1-1.) On July 30, 2020, the Court issued a screening

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order and stayed the case to give the parties an opportunity to settle their dispute. (ECF

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No. 9.) The parties were unable to reach an agreement, and the case proceeded to an

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early mediation conference, scheduled for January 5, 2021. (ECF No. 33.) The case was

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then stayed again, due to Plaintiff’s hospitalization. (ECF No. 41.) On January 12, 2021,

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Defendant filed a suggestion of death on the record. (ECF No. 43.)

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Pursuant to Federal Rule of Civil Procedure 25(a)(1), “[i]f a party dies and the claim

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is not extinguished, the court may order substitution of the proper party. A motion for

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substitution may be made by any party or by the decedent’s successor or representative.

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If the motion is not made within 90 days after service of a statement noting the death, the

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action by or against the decedent must be dismissed.” Fed. R. Civ. P. 25(a)(1). As such,

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if there is no motion for substitution within 90 days of the date of this order, the Court will

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dismiss the case.

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In the meantime, the Court denies all pending motions (ECF Nos. 6, 11, 15, 19,

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20, 22, 23, 28, 35, 36, 38) as moot with leave for the moving party to request

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reinstatement of their motion within seven days from the Court’s order granting any

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motion to substitute the proper party.

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DATED THIS 13th Day of January 2021.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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