Opinion
No. CV-18-00254-PHX-DGC (ESW)
08-08-2019
William L Jobe, Plaintiff, v. Charles L Ryan, et al., Defendants.
REPORT AND RECOMMENDATION
On November 19, 2018, Defendants filed a Notice of Suggestion of Death (Doc. 17) indicating that Plaintiff William L. Jobe died on November 4, 2018. Defendants identified Plaintiff's aunt, Patricia Reider, as next of kin. Defendants retained First Legal Investigations to ascertain Ms. Reider's location. (Doc. 35). The investigation revealed that Ms. Reider died in 2009. (Id. at 4).
Federal Rule of Civil Procedure Rule 25(a)(1) provides that if a party dies, unless substitution is made within 90 days of the service of a suggestion of death, the action shall be dismissed as to the deceased party. Under Rule 25(a), a party must (1) formally suggest the death of the party upon the record and (2) serve the nonparty representatives of the deceased party with the suggestion of death in the manner provided in Federal Rule of Civil Procedure 4 for the service of a summons. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). The ninety-day period in which a motion for substitution can be made is not triggered until both of these steps are taken. Id.
Defendants served the Notice of Suggestion of Death (Doc. 17) at Plaintiff's last known prison address. See Chobot v. Powers, 169 F.R.D. 263, 267 (W.D.N.Y. 1996) (finding that the ninety-day period under Rule 25(a) was triggered by the defendants' service of notice of suggestion of death at the deceased incarcerated pro se plaintiff's last known prison address where a representative was not known). Through the retention of a professional investigative agency, Defendants discovered that Plaintiff's known next of kin is deceased. The undersigned will not recommend that the Court require Defendants to take any further search efforts. See Gruenberg v. Maricopa Cty. Sheriff's Office, No. CV 06-0397PHXSMMDKD, 2008 WL 2001253, at *2 (D. Ariz. May 7, 2008) (dismissing action after defendants' were unable to ascertain deceased plaintiff's next of kin). More than ninety days have passed since Defendants filed and served the Notice of Suggestion of Death (Doc. 17) at Plaintiff's last known prison address and no motion for substitution by Plaintiff's successors or representatives has been filed. Accordingly,
IT IS RECOMMENDED that the Court dismiss this action without prejudice and direct the Clerk of Court to enter judgment accordingly.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
Dated this 8th day of August, 2019.
/s/_________
Eileen S. Willett
United States Magistrate Judge