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Wolff v. Eli Lilly and Company, 2:14-cv-03004-KJM-EFB. (2019)

Court: District Court, E.D. California Number: infdco20190613a09 Visitors: 21
Filed: Jun. 12, 2019
Latest Update: Jun. 12, 2019
Summary: ORDER KIMBERLY J. MUELLER , District Judge . On December 13, 2018, the court ordered that to determine the survival of this action and the potential substitution of a representative party, the parties must comply with Federal Rule of Civil Procedure 25 regarding the death of plaintiff Donald William Ruddell. ECF No. 71. Plaintiffs have filed a suggestion of death upon the record. See ECF No. 72. Without more, however, this suggestion of death fails to trigger the 90-day period provided b
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ORDER

On December 13, 2018, the court ordered that to determine the survival of this action and the potential substitution of a representative party, the parties must comply with Federal Rule of Civil Procedure 25 regarding the death of plaintiff Donald William Ruddell. ECF No. 71. Plaintiffs have filed a suggestion of death upon the record. See ECF No. 72. Without more, however, this suggestion of death fails to trigger the 90-day period provided by Rule 25(a)(1).

The Ninth Circuit has set forth a two-step process by which the notice provisions of Rule 25(a)(1) are satisfied: "a party must formally suggest the death on the record, and `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.'" Meyers v. Cty. of Los Angeles, No. CV 10-05225 DMG AJW, 2011 WL 7164461, at *2 (C.D. Cal. Dec. 19, 2011), report and recommendation adopted, No. CV 10-5225 DMG AJW, 2012 WL 394857 (C.D. Cal. Feb. 6, 2012) (quoting Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994)). Failure to satisfy these steps renders a party's suggestion of death defective under Rule 25. See McNeal v. Evert, No. 2:05-CV-441-GEB-EFB, 2015 WL 1680496, at *1 (E.D. Cal. Apr. 14, 2015) (previously finding defendants' suggestion of death defective when not served on defendant's `nonparty successors or representatives'" (quoting Barlow, 39 F.3d at 233)).

Here, the court finds that Rule 25's notice requirements have not been satisfied. While the suggestion of plaintiff Ruddell's death, filed January 31, 2019, is a necessary component of Rule 25's two-step process, that alone is insufficient. Plaintiffs fail to show what efforts have been made to contact Ruddell's nonparty successors or representatives. See ECF No. 72. Accordingly, a party must provide proper notice to Ruddell's nonparty successors or representatives, as set forth in Barlow, or file a declaration stating what steps were taken to locate and serve such party. Rule 25's 90-day period will not begin until a party has satisfied this additional requirement. Barlow, 39 F.3d at 233. Once triggered, if the 90-day period expires without substitution by a nonparty successor or representative, the court may then dismiss the matter under Rule 25(a). See, e.g., Gruenberg v. Maricopa Cty. Sheriff's Office, No. CV 06-0397-PHX-SMM (DKD), 2008 WL 2001253, at *2 (D. Ariz. May 7, 2008) (dismissing case where plaintiff died approximately ten months prior, more than six months elapsed after notification of plaintiff's death and no inquiry had been made by a potential successor).

IT IS SO ORDERED.

Source:  Leagle

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