Avalos v. Fastrip Oil Company, L.P.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

GEORGE AVALOS, Case No. 1:21-cv-01034-AWI-HBK Plaintiff, ORDER DIRECTING COUNSEL TO FILE PROOF OF SERVICE OF SUGGESTION OF v. DEATH

FASTRIP OIL COMPANY, L.P., TWENTY-ONE DAY DEADLINE

Defendant. (Doc. No. 6)

Plaintiff’s counsel filed a Suggestion of Death Upon the Record Under Rule 25(a)(1), noting Plaintiff died on July 22, 2021. (Doc. No. 6, “Suggestion”). The Suggestion contains no certificate of service indicating that decedent’s successor-in-interest received notice. (Id.). Federal Rule of Civil Procedure 25 provides [i]f a party dies and the claim is not thereby extinguished, the court may order substitute of the proper parties. 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 death, the action by or against the decedent must be dismissed.

Fed. R. Civ. P. 25(a). The party filing the notice of death “must serve the other parties and nonparty successors or representatives of the deceased with a suggestion of death in the same manner as required for service of a motion to substitute. Id., 25(a)(1). A party may be served the suggestion of death by service on his or her attorney, Fed R. Civ. P. 5(b), while non-party successors or representatives of the deceased party must be served the suggestion of death in the manner provided by Rule 4 for the service of summons. See Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). “[T]he 90-day period provided by Rule 25(a)(1) will not be triggered against [the decedent’s] estate until the appropriate representative of the estate is served a suggestion of death in the manner provided by Federal Rule of Civil Procedure 4.” Id. at 233-234.

It does not appear a representative of Plaintiff's estate received notice because no certificate of service accompanied Plaintiff's Suggestion. (See Doc. No. 6). Only Defendant received notice. Although Plaintiff's counsel filed the Suggestion, the Ninth Circuit noted that non-party successors or representative of the deceased party “may not be protected by the attorney of the deceased party. It is entirely possible that no relationship will exist between them.” Barlow, 39 F.3d at 233. Therefore, Plaintiff's filing of the Suggestion did not trigger the running of the 90-day period.

Accordingly, it is ORDERED:

Counsel for Plaintiff shall file proof of service of suggestion of death upon nonparty successors or representatives of the deceased within twenty-one (21) days from the date of this Order.

| Dated: __Angust 6, 2021 Mihaw. Wh. foareh Zaskth HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE