Filed: Jul. 16, 2018
Latest Update: Jul. 16, 2018
Summary: ORDER RE STIPULATION TO CONSOLIDATE ACTIONS FOR ALL PURPOSES STANLEY A. BOONE , Magistrate Judge . Pursuant to Local Rule 143 and Federal Rule of Civil Procedure 42, the parties hereby stipulate to consolidate the above-captioned matters for all purposes. These actions involves claims for the alleged wrongful death of Manuel Jurado, who is alleged to have been killed in an accident with a Postal Truck on June 9, 2017, on Orange Avenue in Fresno, California. Case number 1:18-cv-00636 is brou
Summary: ORDER RE STIPULATION TO CONSOLIDATE ACTIONS FOR ALL PURPOSES STANLEY A. BOONE , Magistrate Judge . Pursuant to Local Rule 143 and Federal Rule of Civil Procedure 42, the parties hereby stipulate to consolidate the above-captioned matters for all purposes. These actions involves claims for the alleged wrongful death of Manuel Jurado, who is alleged to have been killed in an accident with a Postal Truck on June 9, 2017, on Orange Avenue in Fresno, California. Case number 1:18-cv-00636 is broug..
More
ORDER RE STIPULATION TO CONSOLIDATE ACTIONS FOR ALL PURPOSES
STANLEY A. BOONE, Magistrate Judge.
Pursuant to Local Rule 143 and Federal Rule of Civil Procedure 42, the parties hereby stipulate to consolidate the above-captioned matters for all purposes. These actions involves claims for the alleged wrongful death of Manuel Jurado, who is alleged to have been killed in an accident with a Postal Truck on June 9, 2017, on Orange Avenue in Fresno, California. Case number 1:18-cv-00636 is brought by some of Mr. Jurado's adult children, while case number 1:18-cv-00739 is brought by a different group of Mr. Jurado's adult children. Each set of heirs is represented by different counsel, and the Court previously ordered these cases related, and assigned them both to the same district judge and magistrate judge. (See Case No. 1:18-cv-00739, ECF No. 7). This case is pending in federal court because the United States has been named as a defendant, and is sued under the Federal Tort Claims Act. California law controls the claims against the United States because this case was brought under the Federal Tort Claims Act based on alleged negligence in California. See Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012) (California law controls FTCA claims based on alleged negligence occurring in California).
The parties enter into this stipulation because California law permits only one action for wrongful death. See Cross v. Pacific Gas & Elec. Co., 60 Cal.2d 690, 694 (1964). All heirs are necessary parties and "plaintiff heirs have a mandatory duty to join all known omitted heirs in the `single action' for wrongful death. If an heir refuses to participate in the suit as a plaintiff, he or she may be named as a defendant so that all heirs are before the court in the same action. An heir named as a defendant in a wrongful death action is, in reality, a plaintiff." Ruttenberg v. Ruttenberg, 53 Cal.App.4th 801, 808 (1997). As this Court has previously held, "it behooves all parties to ensure" that all heirs are joined in a single action. See Cotta v. Robinson, 2014 WL 4249144, *4 (E.D. Cal. 2014). The existence of two suits for the alleged wrongful death of Mr. Jurado thus violates this rule. See Clay v. Permanente Medical Group, Inc., 540 F.Supp.2d 1101, 1112 (N.D. Cal. 2007). It is the intent of the parties that this stipulation result in a single action by all known-heirs asserting their claims for against the alleged tortfeasor(s).
In addition, the status and timing of service is different in each action, thus subjecting the United States to different responsive pleading deadlines. The parties believe it would be more efficient to have a single responsive pleading deadline of August 10, 2018, for the United States to serve its responsive pleading to each complaint.
To correct the above problems, the parties hereby stipulate as follows:
1. That Case No. 18-cv-0636 and Case No. 18-cv-00739 be consolidated; and
2. That the Court order any responsive pleading by the United States be filed on or before August 10, 2018.
The parties do not propose to change the date of the Scheduling Conferences in these matters, which are both set for September 25, 2018, at this time.
ORDER
Accordingly, it is HEREBY ORDERED that:
1. The Office of the Clerk shall consolidate case no. 1:18-cv-0636-LJO-SAB and case no. 1:18-cv-00739-LJO-SAB;
2. The United States shall file its responsive pleading regarding both complaints on or before August 10, 2018; and
3. The scheduling conference for the consolidated action will be on September 25, 2018, at 3:30 p.m. before Magistrate Judge Stanley A. Boone. A joint scheduling report is due one week before the scheduling conference date.
IT IS SO ORDERED.
