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Battle v. Schwartz

United States District Court, E.D. California
May 28, 2008
No. CIV S-06-0171 LKK GGH P (E.D. Cal. May. 28, 2008)

Opinion

No. CIV S-06-0171 LKK GGH P.

May 28, 2008


ORDER


On May 19, 2008, the court issued findings and recommendations for dismissal of this action as no motion for substitution had been filed in this action following the suggestion of the death of plaintiff, pursuant to Federal Rule of Civil Procedure 25(a)(1). On the same day, a letter request was filed by plaintiff's daughter, Andrea Haygood, asking that she and her brother be substituted in as the proper parties in place of the deceased plaintiff Tyronne Battle. Although the filing was made beyond the ninety day period contemplated by Rule 25(a)(1), Ms. Haygood states that she did not become aware of the status of this case until May 14, 2008.

The court will vacate the May 19, 2008, findings and recommendations and will also vacate defendants' pending motion for judgment on the pleadings, filed on October 30, 2007, without prejudice. When a party dies and the claim is not extinguished by applicable substantive law, the court may order substitution of the deceased party with the proper legal representative. Fed.R.Civ.P. 25(a)(1); Hilao v. Estate of Marcos, 103 F3d 762, 766 (9th Cir. 1996. For a surviving action to continue after the death of the plaintiff, however, it must be pursued by the personal representative of the deceased plaintiff's estate. Chobot v. Powers, 169 F.R.D. 263, 266 (W.D. N.Y. 1996); see also, Inouye v. Kemna, 504 F.3d 705, 711 (9th Cir. 2007). The personal representative of deceased plaintiff's estate must file a motion for substitution of the estate as plaintiff in this action within 45 days.

Accordingly, IT IS ORDERED that:

1. The findings and recommendations, filed on May 19, 2008 (# 28) are vacated;

2. Defendants' motion for judgment on the pleadings, filed on October 30, 2007 (# 22), is vacated without prejudice;

3. The personal representative of deceased plaintiff's estate must file a motion for substitution of the estate as plaintiff in this action within 45 days;

4. The Clerk of the Court is directed to serve a copy of this order by U.S. Mail upon Andrea L. Haygood/2725 Meriwether Rd./Shreveport, LA 71108, and upon Anthony T. Battle/10311 Columbia Ave./Cleveland, OH 41108.


Summaries of

Battle v. Schwartz

United States District Court, E.D. California
May 28, 2008
No. CIV S-06-0171 LKK GGH P (E.D. Cal. May. 28, 2008)
Case details for

Battle v. Schwartz

Case Details

Full title:TYRONNE BATTLE, Plaintiff, v. TERESA SCHWARTZ, et al., Defendants

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

Date published: May 28, 2008

Citations

No. CIV S-06-0171 LKK GGH P (E.D. Cal. May. 28, 2008)