Cooley v. City of Vallejo

Full title: FREDERICK MARCELES COOLEY, Plaintiff, v. CITY OF VALLEJO, et al.…

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Apr 24, 2015

2:14-cv-02824-TLN-AC (E.D. Cal. Apr. 24, 2015)

Opinion

FREDERICK MARCELES COOLEY, Plaintiff, v. CITY OF VALLEJO, et al., Defendants. No. 2:14-cv-02824-TLN-AC United States District Court, E.D. California. April 24, 2015

          ORDER

          ALLISON CLAIRE, Magistrate Judge.

         This matter is before the undersigned pursuant to Local Rule 302(c)(21). On April 23, 2015, defendants filed a notice that plaintiff died on April 22, 2015. ECF No. 11.

         According to Federal Rule of Civil Procedure 25(a), when a party dies a motion for substitution may be made by the decedent's successor or representative within 90 days as long as the claim is not extinguished. Fed.R.Civ.P. 25(a). Section 1983 does not address the survival of actions upon the death of either the plaintiff or defendant. Robertson v. Wegmann, 436 U.S. 584, 589 (1978). In areas such as this on which federal law is silent, 42 U.S.C. § 1988 directs federal courts to borrow the law of the forum state unless it is inconsistent with the purposes of the federal law. Id . In California, "a cause of action for or against a person is not lost by reason of the person's death." Cal. Civ. Proc. Code § 377.20. Accordingly, plaintiff's cause of action is not extinguished by his death and his successor or representative has 90 days in which to file a motion for substitution. If a motion for substitution is not filed within 90 days of defendants' April 23, 2015, notice, the court will dismiss this action. Fed.R.Civ.P. 25(a).

         In light of the foregoing the court hereby VACATES the initial scheduling conference set for April 29, 2015, to be reset if and when a motion for substitution is granted.