(SS)Gonzales v. Commissioner of Social Security

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA JOSEPH RICHARD GONZALES, ) Case No.: 1:20-cv-0517 JLT ) 12 Plaintiff, ) ORDER AFTER SUGGESTION OF DEATH ) (Doc. 15) 13 v. ) ANDREW SAUL, ) Commissioner of Social Security, ) 15 ) Defendant. ) 16 ) 17 On April 26, 2021, Joseph Pena, counsel for plaintiff Joseph Richard Gonzales, filed a notice of “Suggestion of Death” upon the record. (Doc. 15.) Mr. Pena indicated that on April 7, 2021, “was notified by Social Security that the Plaintiff had passed away” on August 23, 2020. (Id. at 1.) Mr. Pena reports he “has not been able to obtain a copy of the death certificate from the County of Merced or from the surviving relatives.” (Id.) He notes that he has attempted to contact relatives who could continue the action, but as yet “has been unable to locate any eligible relatives.” (Id. at 2.)

23 Pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure, the action may continue if a claim is not extinguished. “A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.” Fed.R.Civ.P. 25(a)(1). If the requirements of Rule 25(a) (1) are 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).

1 Because the “Suggestion of Death” has been filed on the record—and the Commissioner received service through the e-filing system—the action must be dismissed if no motion for substitution is filed within 90 days. See Summerfield v. Fackrell, 2012 WL 113281, at *2 (E.D. Cal. Jan. 11, 2012) (before the 90-day period begins to run, the suggestion of death must be filed on the record and served to the other parties); see also Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994).

6 Accordingly, the Court ORDERS: Any motion to substitute a party as plaintiff SHALL be filed no later than July 15, 2021.

9 IT IS SO ORDERED.

10 Dated: April 19, 2021 _ /s/ Jennifer L. Thurston 11 CHIEF UNITED STATES MAGISTRATE JUDGE