stating that a section 1983 action 21 “survives the death of a party”
How later courts described this case
- stating that a section 1983 action 21 “survives the death of a party”
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, FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
13 v. ACTION PURSUANT TO FED. R. CIV. P.
25(a)(1)
14 COUNTY OF MARIPOSA, et al.,
(ECF No. 49)
15 Defendants.
ORDER REQUIRING DEFENDANTS TO
16 FILE PROOF OF SERVICE ON
SUCCESSOR IN INTEREST WITHIN FIVE
17 DAYS
18 OBJECTIONS DUE WITHIN NINETY
DAYS
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20 On November 7, 2018, Jeffrey Brown (“Plaintiff”) filed this civil rights action pursuant
21 to 42 U.S.C. § 1983 against the County of Mariposa, Doug Binnewies, Cody Hart, Sean Land
22 and the John C. Fremont Healthcare District. (ECF No. 1.) Following the filing of several
23 motions to dismiss and amended complaints, this action is now proceeding on Plaintiff’s second
24 amended complaint against the County of Mariposa, Doug Binnewies, Cody Hard and Sean
25 Land for deliberate indifference under section 1983, municipal liability under Monell v.
26 Department of Social Services of the City of New York, 436 U.S. 658 (1978), and a state law
27 claim under the Bane Act, Cal. Civ. Code § 52.1, et seq. (ECF Nos. 31, 39.)
On January 21, 2021, defense counsel filed a notice of suggestion of Plaintiff’s death.
1 (ECF No. 49.) An order was filed on January 22, 2021, advising Defendants of the requirement
2 that the notice be served on the successors in interest to trigger the ninety day period under Rule
3 25 of the Federal Rules of Civil Procedure. (ECF No. 50.) On February 25, 2021, a proof of
4 service was filed showing that Lois Hall, as successor-in-interest to Jeffrey Brown, was
5 personally served with the suggestion of death on February 23, 2021. (ECF No. 51.)
6 Rule 25(a)(1) provides that “[i]f a party dies and the claim is not extinguished, the court
7 may order substitution of the proper party. Federal law does not cover “the survival of civil
8 rights actions under § 1983 upon the death of either the plaintiff or defendant.” Robertson v.
9 Wegmann, 436 U.S. 584, 589 (1978) (quoting Moor v. County of Alameda, 411 U.S. 693, 703,
10 702 n.2 (1973)); see also 42 U.S.C. § 1988(a). In determining if a cause of action survives the
11 death of a party, the court looks to state law. See Chaudhry v. City of Los Angeles, 751 F.3d
12 1096, 1103 (9th Cir. 2014). Under California law, a plaintiff’s claims for damages under section
13 1983 survive his death. Smith v. City of Fontana, 818 F.2d 1411, 1416 (9th Cir. 1987),
14 overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999)
15 (applying California survivorship law to hold that a section 1983 claim could be asserted by the
16 decedent’s estate), see Cal. Civ. Proc. Code §§ 377.20 (“a cause of action for or against a person
17 is not lost by reason of the person’s death, but survives subject to the applicable limitations
18 period”; Cal. Civ. Proc. Code § 377.21 (“A pending action or proceeding does not abate by the
19 death of a party if the cause of action survives.”); see also In re Estate of Ferdinand Marcos,
20 Human Rights Litig., 25 F.3d 1467, 1476 (9th Cir. 1994) (stating that a section 1983 action
21 “survives the death of a party”).
22 A motion for substitution may be made by any party or by the decedent’s successor or
23 representative.” Fed. R. Civ. P. 25(a)(1). Rule 25(a) therefore “requires two affirmative steps in
24 order to trigger the running of the 90 day period.’ Gilmore v. Lockard, 936 F.3d 857, 865 (9th
25 Cir. 2019) (quoting Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994); In re MGM Mirage Sec.
26 Litig., 282 F.R.D. 600, 602 (D. Nev. 2012). The party must first formally suggest the death of
27 the party upon the record. Gilmore, 936 F.3d at 865 (quoting Barlow, 39 F.3d at 233. Secondly,
1 deceased with a suggestion of death in the same manner as required for service of the motion to
2 substitute.” Id. Thus, a party may be served with the suggestion of death by service on his or
3 her attorney, Fed. R. Civ. P. 5(b), while non-party successors or representatives of the deceased
4 party must be served the suggestion of death in the manner provided by Rule 4 for the service of
5 a summons. Fed. R. Civ. P. 25(a)(3); Barlow, 39 F.3d at 232-34. Here, Plaintiff’s claims did not
6 abate upon his death and Rule 25 is applicable.
7 If a motion for substitution “is not made within 90 days after service of a statement
8 noting the death, the action by or against the decedent must be dismissed.” Fed. R. Civ. P.
9 25(a)(1). However, Rule 25 requires dismissal, absent a motion for substitution within the
10 ninety-day period, only if the statement of death was properly served. Gilmore, 936 F.3d at 866–
11 67 (stating Barlow is “understood as interpreting the 90-day rule judiciously: where a party files
12 a suggestion of death, it must do so in a manner that puts all interested parties and nonparties on
13 notice of their claims in order to trigger the 90-day window.”).
14 Here, Defendant properly served the successor in interest by personally delivering a copy
15 of the notice of suggestion of death on February 23, 2021. See Fed. R. Civ. P. 4(e)(2)(a)
16 (providing for service “by delivering a copy of the summons and of the complaint to the
17 individual personally”). The notice informed any potential successor in interest of the suggestion
18 of death made under Rule 25(a)(1).1 The ninety day period has now expired, and no motion for
19 substitution has been filed.
20 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed pursuant
21 to Rule 25(a)(1) of the Federal Rules of Civil Procedure.
22 Defendants are HEREBY ORDERED to serve a copy of this findings and
23 recommendations on the successor in interest and file proof of service within five (5) days of the
24 date of entry of this order.
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1 The notice of suggestion of death did not inform the successor in interest of the substance of the rule or that a
motion for substitution must be made within ninety days. The ninety day deadline to file a motion for substitution
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may be extended by Rule 6(b), including after the expiration of a deadline where the party failed to act due to
“excusable neglect.” Zanowick v. Baxter Healthcare Corp., 850 F.3d 1090, 1094 (9th Cir. 2017) (quoting Fed. R.
27 Civ. P. 6(b)); see also In re Cardoza, 111 B.R. 906, 910 (Bankr. S.D. Cal. 1990). Accordingly, the successor in
interest may seek to substitute for the deceased plaintiff by arguing excusable neglect in failing to comply with the
1 This findings and recommendations is submitted to the district judge assigned to this
2 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30)
3 | days of service of this recommendation, any party may file written objections to this findings
4 | and recommendations with the court and serve a copy on all parties. Such a document should be
5 | captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district
6 | judge will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. §
7 | 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may
8 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)
9 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED. FA. ee
12 | Dated: _ May 28, 2021
UNITED STATES MAGISTRATE JUDGE
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