Opinion
1:21-cv-01003-NONE-SAB
07-30-2021
GEORGE AVALOS, Plaintiff, v. UPPAL INVESTMENTS, INC., et al., Defendants.
ORDER REQUIRING STATEMENT OF DEATH TO BE SERVED ON SUCCESSOR OR REPRESENTATIVE (ECF NO. 11)
George Avalos (“Plaintiff”) filed this action on June 24, 2021. (ECF No. 1.) On July 29, 2021, counsel for Plaintiff filed a statement under Federal Rule of Civil Procedure 25(a)(1) suggesting the death of Plaintiff. (ECF No. 11.)
The Court notes that Plaintiff's counsel has not filed such notice in another action before the undersigned brought by George Avalos, that currently has a findings and recommendations regarding a motion for default judgment pending. See Avalos v. Sandhu, Case No. 21-cv-00538-NONE-SAB.
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)).
Here, counsel for Plaintiff has filed a statement noting the death of Plaintiff upon the record, but there is no indication that the statement has been served on Plaintiffs successor or representative.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiffs counsel shall file proof that the statement noting Plaintiffs death has been served on Plaintiffs successor or representative within ten (10) days of entry of this order;
2. A motion to substitute the successor in interest within ninety (90) days of the date of service of the statement noting Plaintiffs death; and
3. 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.