Eble v. Nissan North America, Inc.

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 James Eble, No. 2:22-cv-01701-KJM-JDP 12 Plaintiff, ORDER 13 v. 14 Nissan of Yuba City, et al., 1S Defendants.

17 Plaintiff James Eble filed this action under the Fair Credit Reporting Act, 15 U.S.C. | § 1681, ef seq. in September 2022. See Compl. A year later, plaintiff's counsel filed a notice | representing plaintiff tragically died on September 12, 2023. See Notice, ECF No. 38.

20 | Plaintiffs counsel then filed a supplement informing the court decedent’s family was unlikely to | raise an estate and decedent’s son, his sole heir and successor, would file a motion within thirty | days if he wished to seek leave to substitute as plaintiffs successor-in-interest. See Supplement, | ECF No. 40.

24 Under Federal Rule of Civil Procedure 25, when a party dies and the 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). The ninety-day period is triggered once a party (1) files a notice or suggestion of death | and (2) serves the suggestion of death on other parties and nonparty successors or representatives | of the deceased in the same manner as required for service of the motion to substitute. Barlow v. | Ground, 39 F.3d 231, 233 (9th Cir. 1994).

4 As noted above, plaintiffs counsel filed a formal notice of death in September 2023.

5 | However, it is unclear from the information provided whether counsel also properly served the | notice on the appropriate parties. Accordingly, within thirty (30) days from the date of this order, | plaintiff's counsel shall provide a declaration describing his efforts to serve the suggestion of | death on the appropriate parties in accordance with Rule 25.

9 IT IS SO ORDERED.

10 | DATED: March 5, 2024. / / 1] CHIEF ED STATES DISTRICT JUDGE