Opinion
No. CIV S-07-1493 MCE KJM.
February 27, 2008
ORDER
Defendant's motion to compel discovery came on regularly for hearing February 27, 2008. Plaintiffs did not appear. Liza Mendoza appeared telephonically for defendant. Upon review of the documents in support, no opposition having been filed, upon hearing the arguments of counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
Defense counsel advised the court at the hearing on this matter that she has been advised by plaintiff's counsel that James Foster, plaintiff in this action and personal representative of plaintiff Elma Foster, is deceased. Defendant will therefore be directed to serve the suggestion of death upon the record as provided by Federal Rule of Civil Procedure 25(a)(1). The suggestion of death, in order to be valid and to invoke the ninety day limit for filing of a motion for substitution, should, if possible, identify the successor or representative who may be substituted for decedent. Smith v. Planas, 151 F.R.D. 547 (S.D. N.Y. 1993).
In light of plaintiff's failure to respond to discovery, defendant's motion to compel is well taken. However, in light of the suggestion of death, the court will hold in abeyance the order to compel discovery pending resolution of any motion for substitution.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant shall serve the suggestion of death upon the record as provided by Federal Rule of Civil Procedure 25(a)(1) within twenty days of this order.
2. Defendant's motion to compel is granted and expenses are awarded in the amount of $595.00. Pending resolution of any motion for substitution, the order on defendant's motion to compel is held in abeyance.