Opinion
No. 2:14-cv-2824 TLN AC (PS)
05-12-2016
FREDERICK MARCELES COOLEY, Plaintiff, v. CITY OF VALLEJO, et al., Defendants.
FINDINGS AND RECOMMENDATION
This matter was referred to the undersigned by E.D. Cal. R. 302(c)(21). On April 23, 2015, defendants filed a Statement of Death advising the court that plaintiff had died on or about April 22, 2015. ECF No. 11. After being briefed on the matter, the court determined that plaintiff's claim did not abate, and that his three-year-old son, non-party Frederick Marceles Cooley, Jr., was the decedent's successor. ECF No. 23. Accordingly, Frederick Marceles Cooley, Jr., could file a motion to substitute in as plaintiff. See Fed. R. Civ. P. ("Rule") 25(a)(1) (a "motion for substitution may be made by . . . the decedent's successor . . .").
The court thereupon ordered the Statement of Death to be served upon non-parties Frederick Marceles Cooley, Jr. (a minor), and his mother, Jennifer Johnson, in accordance with Rule 4. ECF No. 23; see Fed. R. Civ. P. 25(a)(3) (a statement noting death must be served on non-parties in accordance with Fed. R. Civ. P. 4). On January 13, 2016, defendants filed a Certificate of Service advising the court that they had served non-parties Frederick Marceles Cooley, Jr. and his mother, Jennifer Johnson, on January 5, 2016, using "substituted service" under California law. ECF No. 28.
A motion to substitute Frederick Marceles Cooley, Jr. in as plaintiff, accompanied by a Motion to Appoint a Guardian ad Litem for him, was due 90 days after service of the statement of death. ECF No. 23; Rule 25(a)(1) (if the motion to substitute is not filed within 90 days of service of the statement of death, "the action by or against the decedent must be dismissed").
The court's order of October 9, 2015 cautioned that failure to timely file a motion for substitution would result in a recommendation that this action be dismissed. ECF No. 23. The time for filing a motion for substitution has expired, and no such motion has been filed.
Accordingly, IT IS HEREBY RECOMMENDED that this matter be dismissed pursuant to Rule 25(a)(1), based upon the statement of plaintiff's death, and the failure of plaintiff's successor or representative to file a motion for substitution within 90 days of service.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty one days after being served with these findings and recommendations, any party, may file written objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). For this purpose, "party" includes Frederick Marceles Cooley, Jr. or his proper representative. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). DATED: May 12, 2016
/s/ _________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE