stating Barlow is “understood as interpreting the 90-day rule judiciously: where a party 4 | files a suggestion of death, it must do so in a manner that puts all interested parties and 5 | nonparties on notice of their claims in order to trigger the 90-day window.”
How later courts described this case
- stating Barlow is “understood as interpreting the 90-day rule judiciously: where a party 4 | files a suggestion of death, it must do so in a manner that puts all interested parties and 5 | nonparties on notice of their claims in order to trigger the 90-day window.”
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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11 JEFFREY BROWN, Case No. 1:18-cv-01541-NONE-SAB
12 Plaintiff, ORDER ADVISING DEFENDANTS OF
REQUIREMENT TO FILE PROOF OF
13 v. SERVICE OF SUGGESTION OF DEATH
OF PLAINTIFF IN ORDER TO TRIGGER
14 COUNTY OF MARIPOSA, et al., NINETY-DAY PERIOD
15 Defendants. (ECF No. 49)
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17 Jeffrey Brown (“Plaintiff”) filed this action on November 7, 2018. (ECF No. 1.) On
18 January 21, 2021, Defendants filed a statement suggesting the death of Plaintiff. (ECF No. 49.)
19 Rule 25(a)(1) provides for the dismissal of a party or an action if a motion for substitution
20 is not made within ninety days after service of a statement noting the party’s death. Fed. R. Civ.
21 P. 25(a)(1). In order for the ninety-day period for substitution to be triggered, a party must
22 formally suggest the death of the party upon the record, Fed. R. Civ. P. 25(a)(1), and must serve
23 other parties and nonparty successors or representatives of the deceased with a suggestion of
24 death in the same manner as required for service of the motion to substitute, Fed. R. Civ. P.
25 25(a)(3). Thus, a party may be served with the suggestion of death by service on his or her
26 attorney, Fed. R. Civ. P. 5(b), while non-party successors or representatives of the deceased party
27 must be served the suggestion of death in the manner provided by Rule 4 for the service of a
summons. Fed. R. Civ. P. 25(a)(3); Barlow v. Ground, 39 F.3d 231, 232-34 (9th Cir. 1994).
1 | Rule 25 requires dismissal, absent a motion for substitution within the ninety-day period, only if
2 | the statement of death was properly served. Gilmore v. Lockard, 936 F.3d 857, 866-67 (9th Cir.
3 | 2019) (stating Barlow is “understood as interpreting the 90-day rule judiciously: where a party
4 | files a suggestion of death, it must do so in a manner that puts all interested parties and
5 | nonparties on notice of their claims in order to trigger the 90-day window.”).
6 While Plaintiffs attorney has been served the suggestion of death, Defendants have not
7 | filed a proof of service for the non-party successors or representatives of Plaintiff. Accordingly,
g | Defendants are HEREBY NOTIFIED they must file proof that the non-party successors or
g | representatives of Plaintiff have been served with the suggestion of death in order to trigger the
10 | time period described in Federal Rule of Civil Procedure 25(a).
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12 | IT IS SO ORDERED.
A fe
13 | Dated: _ January 22, 2021 OF
14 UNITED STATES MAGISTRATE JUDGE
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