Daigle v. City of Oceanside

Opinion

7 10 GWEN DAIGLE, Case No. 19-cv-1180-BAS-WVG 11 Plaintiff, ORDER GRANTING MOTION FOR 12 SUBSTITUTION OF PLAINTIFF AND v. TO FILE SECOND AMENDED CITY OF OCEANSIDE, et al., 14 [ECF No. 19] Defendants. 15 16 Plaintiff Gwen Daigle passed away on October 14, 2019. Brandon Lee Daigle, 17 Hunter Willow Munsterman, and R.A.Q. now move to substitute as Plaintiffs in this action, 18 and request that Deborah Carman be added as a party plaintiff. (Mot. to Substitute Plfs. 19 and to File Second Am. Compl. (“Motion”), ECF No. 19.) Defendants filed a notice 20 indicating their non-opposition to this Motion. (ECF No. 28.) 21 I. Motion for Substitution 22 Pursuant to Federal Rules of Civil Procedure, “if a party dies and the claim is not 23 thereby extinguished, the Court may order the substitution of proper parties.” Fed. R. Civ. 24 P. 25(a)(1). A motion for substitute may be made by “any party or by the decedent’s 25 successor or representative” and must be made within 90 days after service of a statement 26 noting the death[.]” Id.; see Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). 27 On February 10, 2020, this Court granted the proposed Plaintiffs’ ex parte 28 application requesting that the Court accept the Motion to Substitute and Proposed Second 1 Amended Complaint (“SAC”) filed on February 3, 2020. (ECF No. 24.) Because the 2 ||Notice of Death was filed on November 5, 2019 (ECF No. 17), the deadline to file the 3 ||Motion was February 3, 2020; thus, the Motion is timely under Rule 25(a)(1). Further 4 ||Brandon Lee Daigle, Hunter Willow Munsterman, and R.A.Q. are all alleged to be 5 || successors-in-interest to Gwen Daigle. These four individuals are therefore proper parties 6 ||to substitute for Gwen Daigle under the Federal Rules. 7 Motion to Add Party Plaintiff 8 The proposed Plaintiffs also seek to add Gwen Daigle’s mother, Deborah Carman 9 || “as a party plaintiff for her claim in violation of the right to familial relations.” (Mot. at 2.) 10 || Because plaintiffs do not argue that Ms. Carman is Gwen Daigle’s legal representative 11 25 does not govern this request. See Mallonee v. Fahey, 200 F.2d 918, 919 (9th Cir 12 |} 1952) (‘Rule 25(a)(1) applies only to the substitution of legal representatives.”) Instead. 13 || the Court understands this as a request for leave to amend under Rule 15 to add a Fourteentt 14 || Amendment claim and to add Ms. Carman as a plaintiff to this specific clam. The Cour 15 ||}understands Defendants’ non-opposition to Plaintiffs’ Motion to File the SAC as consent 16 the amendment for purposes of Rule 15(a)(2). See Estate of Silva v. City of San Diego 17 || No. 18-cv-2282-MMA (MSB), 2019 WL 3220165, at *10 (S.D. Cal. July 17, 2019). Hence 18 || Plaintiffs’ addition of Ms. Carman does not require the court’s leave. 19 || III. Conclusion and Order 20 Accordingly, the Motion to Substitute Plaintiffs and to File the SAC (ECF No. 19, 21 GRANTED. Plaintiffs Brandon Lee Daigle, Hunter Willow Munsterman, R.A.Q. shal 22 substituted for Plaintiff Gwen Daigle, and Plaintiffs shall file their SAC—uincluding the 23 ||noted additional claims and party plaintiffs—on or before March 17, 2020. In light of the 24 ||pending amended complaint, Defendants’ pending Motion to Dismiss and Motion □□□ 25 || Judgment on the Pleadings (ECF Nos. 7, 9) are DENIED AS MOOT. Defendants may 26 renew their motions as to SAC once it is filed on the docket. 28 || DATED: March 3, 2020 (uf Ll. (Liphan 6 How. Cynthia Bashant United States District Judge