ORDER GRANTING MOTION FOR SUBSTITUTION OF PLAINTIFF; AND DENYING DEFENDANTS' MOTION TO DISMISS PLAINTIFF CALDWELL'S CLAIMS (Docket Nos. 316, 319)

EDWARD M. CHEN, District Judge.

I. INTRODUCTION

Pending before the Court is the motion to substitute Zephoia Smith (JohnTue Caldwell's personal representative) for the deceased Plaintiff JohnTue Caldwell. Also pending is the motion brought by Defendants Marysol Domenici and Anthony Pirone to dismiss Caldwell's claims. For the following reasons, the motion to substitute is GRANTED and the motion to dismiss is DENIED.

II. FACTUAL & PROCEDURAL BACKGROUND

On July 15, 2011, Plaintiff JohnTue Caldwell was murdered in Hayward, California. Docket No. 316, at 2. On April 19, 2012, Zephoria Smith, Mr. Caldwell's mother, filed notice of letters of administration in this Court. Docket No. 253. The attached letters of administration appointed Ms. Smith as the personal representative of Mr. Caldwell's estate. Id. at 2. For almost two years, no objection was raised to Ms. Smith's involvement in this suit. However, no formal motion to substitute Ms. Smith for Mr. Caldwell was filed until March, 25, 2014, after Ms. Smith retained new counsel. See id. The same day, Defendants Marysol Domenici and Anthony Pirone moved to dismiss the claims brought by JohnTue Caldwell. Defendants argue that Federal Rule of Civil Procedure 25 requires dismissal of a plaintiff's claims where the plaintiff dies and no motion to substitute is filed within 90 days. Docket No. 319, at 2-3.

III. DISCUSSION

Federal Rule of Civil Procedure 25(a) governs the substitution of a party due to death. Specifically, this provision provides, in relevant part:

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

In Barlow v. Ground, 39 F.3d 231 (9th Cir. 1994), the Ninth Circuit explained the application of this provision. The Court held that a "careful reading of the rule" and an "understanding of its function" of Rule 25(a) demonstrated that the "rule requires two affirmative steps in order to trigger the running of the 90 day period." Id. at 233. First, "a party must formally suggest the death of the party upon the record." Id. It is not enough that a party's death be referenced in court proceedings or pleadings. See Grandbouche v. Lovell, 913 F.2d 835 (10th Cir. 1990) (per curiam) ("Mere reference to a party's death in court proceedings or pleadings is not sufficient to trigger the limitations period for filing a motion for substitution."). Second, "the suggesting party must serve other parties and nonparty successors or representatives of the deceased with a suggestion of death in the same manner as required for service of the motion to substitute." Barlow, 39 F.3d at 233.

Ms. Smith argues that a formal suggestion of death has been filed for purposes of Rule 25(a) as no such filing was made by a party in this action. The Court disagrees. On one hand, courts have noted that a formal suggestion of death may not be filed by the decedent's attorney, as they are not a party. See, e.g., U.S. v. Currency $11,331, 482 F.Supp.2d 873, 886 (E.D. Mich. 2007) ("Such a motion must be filed by a party or the successors or representatives of the decedent, not an attorney for a party acting on his own."); Burgos-Yantin v. Municipality of Diaz, 709 F.Supp.2d 118, 122 (D.P.R. 2010) ("Rule 25 does not specify which party should file and serve a statement noting death, however, `once a party dies, his attorney has no authority to add anything to the record."). Further, the Ninth Circuit's Burlow decision does speak of the notice being filed by a "party." However, Mr. Caldwell's attorney was not the only individual to file the notice of administration and probate issued by Alameda County Superior Court. Ms. Smith — Mr. Caldwell's appointed personal representative — filed her own notice on April 19, 2012. Docket No. 253. The plain text of Rule 25 recognizes that a suggestion of death may be filed by the decedent's successor or representative. See Currency $11,331, 482 F. Supp. 2d at 886; see also All-Jundi v. Rockefeller, 88 F.R.D. 244, 245 (W.D.N.Y. 1980).

Accordingly, the Court finds that Rule 25(a)'s 90 day period expired, at the latest, July 18, 2012. This does not end the inquiry, however. Rule 25's 90 day period can be extended if the failure to file a timely substitution motion is the result of excusable neglect. See, e.g., Scott v. Vasquez, No. CV 02-05296 GAF(AJW), 2009 WL 8725114, at *1 (C.D. Cal. Dec. 9, 2009) ("The 90-day period prescribed by Rule 25(a)(1) for filing a motion for substitution can be extended by the court `on motion made after the time has expired if the party failed to act because of excusable neglect.'" (quoting Fed. R. Civ. P. 6(b)). Excusable neglect is an equitable concept, and is "remedial in nature and . . . must be liberally applied." Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1262 (9th Cir. 2010) (citation omitted).1 Accordingly, [a]bsent bad faith on the part of the movant or undue prejudice to the other parties to suit, discretionary extensions should be liberally granted." Nat'l Equipment Rental, Ltd. v. Whitecraft Unlimited, Inc., 75 F.R.D. 507, 510 (E.D.N.Y. 1977).

Applying the excusable neglect standard requires a court to balance four equitable factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. Id. at 1261. No one factor is dispositive. See, e.g., Doe 150 v. Archdiocese of Portland in Oregon, No. CV 08-691-PK, 2010 WL 5071203, at *1 (D. Or. Dec. 7, 2010). Rather, the balancing of all four factors is "left to the discretion of the district court in every case." Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir. 2004) (en banc).

The Court finds the excusable neglect standard is satisfied. First, Defendants do not argue that Ms. Smith has engaged in bad faith by filing the motion to substitute. Second, while Defendants argue that they suffer prejudice from this "untimely motion" because "[o]n the eve of trial" they "neither know which claims of he Estate contends survive Caldwell's death, nor have Defendants have been able to conduct additional discovery into whether Smith is a proper party representative." Docket No. 323, at 11. The Court disagrees. As their own argument recognizes, Ms. Smith filed a suggestion of death almost two years ago. Subsequent to the suggestion of death being filed, Mr. Caldwell's former attorney (and his mother, Ms. Smith) participated in the proceedings, including joint case management conference statements (Docket No. 256), case management conferences (Docket No. 277), and the filing of a motion to withdraw as attorney (Docket No. 279). Still, at no time did Defendants raise any objection to Ms. Smith's (or Mr. Caldwell's attorney's) participation in this case. Similarly, Defendants have never raised an argument that any of Mr. Caldwell's claims were extinguished by his death — for example by filing a motion to dismiss or motion for summary judgment. Accordingly, the Court finds that any "prejudice" defendants have or will suffer is the result of their own inaction. Cf. In re Leisure, Inc., 400 B.R. 837 (Bankr. M.D. Fla. 2008) (applying similar excusable neglect standard and finding that "Leisure was aware of Zurich's potential claim against it prior to and during the pendency of the bankruptcy case. To the extent that any prejudice would result to Leisure from Zurich being permitted to file its claim, such prejudice is attributable to Leisure.").

Further, the Ninth Circuit has noted that the fact that a party will have to defend a claim on its merits is not "prejudice" for purposes of the excusable neglect standard. Cf. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224-25 (9th Cir. 2000) ("The prejudice to the Postal Service was minimal. It would have lost a quick victory and, should it ultimately have lost the summary judgment motion on the merits, would have to reschedule the trial date. But such prejudice is insufficient to justify denial of relief under Rule 60(b)(1).").

Next, as to the "reason for delay" for the motion to substitute, it appears that any delay is the result of inadvertence or mistake by either Ms. Smith's first attorney or Ms. Smith herself, rather than a deliberate ploy or tactical decision.2 Defendants cite extensive case law from outside the Ninth Circuit which have held that "misreading or misapprehension of the governing rule" does not establish excusable neglect for purposes of Rule 25. See, e.g., Kaubisch v. Weber, 408 F.3d 540, 543 (8th Cir. 2005). However, the Ninth Circuit has expressly rejected a per se rule against "attorney neglect" constituting "excusable neglect." In Pincay, an en banc panel of the Ninth Circuit, while noting that a "lawyer's mistake of law in reading a rule of procedure is not a compelling excuse," rejected the argument that such a mistake could never constitute excusable neglect. Pincay, 389 F.3d at 860. There are multiple published Ninth Circuit cases finding a lawyer's negligence, inadvertence, or mistake sufficient for a finding of excusable neglect. See, e.g., Ahanchian, 624 F.3d at 1261 (excusable neglect where attorney misread the applicable deadline because of a "calendaring" mistake); Bateman, 213 F.3d at 1225 (excusable neglect shown where attorney failed to file a timely opposition to a motion because of jet lag and failure to review his mail). Finally, while delay between when the motion to substitute should have been filed and when it actually was filed is substantial — almost two years — the Court concludes that this factor does not require denial of the motion to substitute.

IV. CONCLUSION

Ultimately, given the lack of any bad faith on the part of Ms. Smith, the lack of any actionable prejudice to Defendants, and the nature of the mistake underlying the failure to timely file a motion to substitute, the Court finds Ms. Smith has established excusable neglect. Accordingly, the motion to substitute will be GRANTED and Defendants' motion to dismiss DENIED. This order disposes of Docket Nos. 316 and 319.

IT IS SO ORDERED.