Opinion
Case No. 3:17-cv-32-JR
10-04-2018
DONALD D. MACFARLANE, et al., Plaintiffs, v. STATE OF OREGON DEPARTMENT OF HUMAN SERVICES, et al., Defendants.
FINDINGS AND RECOMMENDATION :
Pro se plaintiff, Donald MacFarlane, is the sole remaining plaintiff in this action. On April 6, 2018, the court ordered plaintiff to provide defendant State of Oregon Department of Human Services (DHS), within 11 days, a date he would be available for deposition and warned that failure to do so may result in dismissal of this action for failure to prosecute. On June 12, 2018, DHS filed a notice suggesting plaintiff was deceased and served it to the plaintiff's address as noted in the court record. DHS now moves, pursuant to Fed. R. Civ. P. 25(a)(1), to dismiss with prejudice.
If a motion to substitute by a decedent's successor or representative is not made within 90 days after service of a statement noting death, the action must be dismissed. Fed. R. Civ. P. 25(a)(1). To date, no motion to substitute has been made. Accordingly, this action should be dismissed.
CONCLUSION
Defendant's motion to dismiss and extinguish claim (doc. 39) should be granted and this action should be dismissed. A final judgment should be prepared.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
DATED this 4th day of October 2018.
/s/ Jolie A. Russo
Jolie A. Russo
United States Magistrate Judge