Opinion
1:21-cv-00538-NE-SAB
08-10-2021
GEORGE AVALOS, Plaintiff, v. GURDIP SINGH SANDHU, Defendant.
ORDER REQUIRING PLAINTIFF'S COUNSEL TO ADDRESS PLAINTIFF'S NOTICES OF DEATH FILED IN OTHER ACTIONS BEFORE THIS COURT
FIVE DAY DEADLINE
On March 30, 2021, Plaintiff filed this action pursuant to the Americans with Disabilities Act. (ECF No. 1.) Defendant has not appeared in this action. On July 26, 2021, the undersigned issued findings and recommendations recommending that Plaintiff's motion for default judgment be granted. (ECF No. 12.) No. objections have been filed within the fourteen day period to do so.
In other actions brought by Plaintiff George Avalos, on July 29, 2021, notices suggesting the death of Plaintiff George Avalos were filed pursuant Federal Rule of Civil Procedure 25(a)(1). (See Avalos v. Southern Pacpizza, LLC, 21-cv-00547-NONE-SAB, ECF No. 14; Avalos v. Uppal Investments, Inc., 21-cv-01003-NONE-SAB, ECF No. 11.) In those cases, the Court ordered such notices to be served on the successors of interest, and in such orders, noted that no such suggestion of death had been filed in this action. (See 21-cv-00547-NONE-SAB, ECF No. 15 n.1; 21-cv-01003-NONE-SAB, ECF No. 12 n.1.)
Rule 25(a)(1) provides for the dismissal of a party or an action if a motion for substitution is not made within ninety days after service of a statement noting the party's death. Fed.R.Civ.P. 25(a)(1). The Ninth Circuit has held that there are two affirmative steps that trigger the running of the ninety-day period in Rule 25(a)(1). See Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). First, a party must formally suggest the death of the party upon the record. Id. (citations omitted). Second, the suggestion of death must be served on parties in accordance with Rule 5 and served on nonparties in accordance with Rule 4. Id (citation omitted); Fed.R.Civ.P. 25(a)(3)).
The Court is not aware of any reason why a pending motion for default judgment or pending findings and recommendations would relieve counsel from the requirement to follow the procedures under Rule 25(a), given the apparent death of the Plaintiff in this action.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiffs counsel shall either file a statement noting the death of Plaintiff upon the record, or a statement informing the Court why such notice would not be required, within five (5) days of entry of this order;
2. If a statement noting the death of Plaintiff is filed, Plaintiffs counsel shall also file proof that the statement noting Plaintiffs death has been served on Plaintiffs successor or representative
3. A motion to substitute the successor in interest shall be filed within ninety (90) days of the date of service of the statement noting Plaintiffs death, if any; and
4. The failure to comply with this order will result in the issuance of sanctions, up to and including dismissal of this action.
IT IS SO ORDERED.