Filed: Nov. 27, 2019
Latest Update: Nov. 27, 2019
Summary: MEMORANDUM AND ORDER RE: MOTION TO SUBSTITUTE PLAINTIFF WILLIAM B. SHUBB , District Judge . Plaintiff Charles Wright brought this action against defendants USAA Savings Bank and USAA Federal Savings Bank alleging violations of the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code 1788, et seq. , and the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, et seq. Wright died shortly thereafter. Defendants then filed a Notice of Suggestion of Death of Plaintiff. (Docket
Summary: MEMORANDUM AND ORDER RE: MOTION TO SUBSTITUTE PLAINTIFF WILLIAM B. SHUBB , District Judge . Plaintiff Charles Wright brought this action against defendants USAA Savings Bank and USAA Federal Savings Bank alleging violations of the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code 1788, et seq. , and the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, et seq. Wright died shortly thereafter. Defendants then filed a Notice of Suggestion of Death of Plaintiff. (Docket ..
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MEMORANDUM AND ORDER RE: MOTION TO SUBSTITUTE PLAINTIFF
WILLIAM B. SHUBB, District Judge.
Plaintiff Charles Wright brought this action against defendants USAA Savings Bank and USAA Federal Savings Bank alleging violations of the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788, et seq., and the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq. Wright died shortly thereafter. Defendants then filed a Notice of Suggestion of Death of Plaintiff. (Docket No. 12.) Before the court is plaintiff's motion to substitute Vanessa Wright, plaintiff's wife and representative of plaintiff's estate (id.), as plaintiff. (Docket No. 18.)
I. Legal Standard
Federal law governs a motion for substitution following a party's death.1 See In re Irwin, 338 B.R. 839, 849 (E.D. Cal. 2006) (citing Servidone Constr. Corp. v. Levine, 156 F.3d 414, 416 (2d Cir. 1998) ("The Federal rules, rather than state-law principles, govern the procedure for substitution following a party's death, even where the court must apply state substantive law."); 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1952, at 526 (2d ed. 1986) ("In a federal question case, federal law and federal decisions, rather than state law, determine whether the action survives the death of a party.")); see also Sharp v. Ally Financial, Inc., 328 F.Supp.3d 81, 88 (W.D.N.Y 2018) (applying federal law to evaluate party substitution in TCPA action). Rule 25(a)(1) of the Federal Rules of Civil Procedure provides that "[i]f a party dies and the claim is not extinguished, the Court may order substitution of the proper party." F.R.C.P. 25(a)(1). "A motion for substitution may be made by any party or by the decedent's successor or representative." Id. To avoid dismissal, such a motion must be made within 90 days after service of a statement noting the death. Id. In deciding a motion to substitute under Rule 25(a)(1), the court therefore must consider whether: (1) the claims pled are extinguished; (2) the person being substituted is a proper party; (3) the motion is timely. Id.; Savoy, No. 2:13-CV-00014 JAM AC, 2014 WL 3689365, at *1. If Rule 25(a)(1) is met, "[t]he substituted party steps into the same position as [the] original party." Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 1996).
Defendants do not contest that plaintiff's motion to substitute satisfies each of the federal law requirements above. (See Docket No. 21.) Defendants contest only that plaintiff's motion to substitute fails to comply with state law requirements (id.), which do not apply here. The court therefore finds that plaintiff's motion complies with Rule 25(a).
IT IS THEREFORE ORDERED that plaintiff's Motion to Substitute Plaintiff (Docket No. 18) be, and the same hereby is, GRANTED.
