De Los Reyes v. Walmart Inc.

• Court: District Court, S.D. California
• Decided: March 5, 2025
• Docket: 3:24-cv-01319
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JENNIFER DE LOS REYES, an Case No.: 24-CV-1319 JLS (KSC) individual, 12 ORDERING DEFENDANT TO FILE Plaintiff, 13 FORMAL NOTICE OF vs. PLAINTIFF’S DEATH 14 WALMART, INC., a corporation, 15 Defendant. 16

17 On September 17, 2024, the Court received a Notice of Plaintiff’s Death by 18 Plaintiff’s counsel (“Notice,” ECF No. 9). Plaintiff’s counsel indicated he was informed 19 that Plaintiff Jennifer De Los Reyes died on September 1, 2024. Notice at 2. Plaintiff’s 20 counsel further represented that he had “not been retained by any successor or 21 representative of De Los Reyes, the deceased party.” Id. Finally, Plaintiff’s counsel 22 expressed the Notice was “not intended as a motion for substitution on behalf of a successor 23 or representative under Fed. R. Civ. P. 25(a)(1),” as “Plaintiff’s counsel is not a party to 24 this action and he lacks authority to represent De Los Reyes after her death.” Id. (citing to 25 Woodson v. City of Richmond, Va., No. 3:13CV134, 2014 WL 7462509, at *1 (E.D. Va. 26 Dec. 31, 2014), which holds that a deceased party’s lawyer lacks authority to file a 27 statement of death because under Fed. R. Civ. P. 25(a) the lawyer is neither a party nor a 28 representative or successor of the deceased party). 1 Federal Rule of Civil Procedure 25 establishes the process for moving forward after 2 a party to a civil action has died. Of relevance here, it provides that “[i]f a party dies and 3 the claim is not extinguished, the court may order substitution of the proper party.” Fed. 4 R. Civ. P. 25(a). If the decedent’s successor or representative does not file a motion for 5 substitution “within 90 days after service of a statement noting the death, the action by or 6 against the decedent must be dismissed.” Id. 7 “The question of whether an action survives the death of a party must be determined 8 by looking towards the law, state or federal, under which the cause of action arose.” 9 Stribling v. Lucero, No. 2:16-CV-01438-TLN-JDP, 2021 WL 516849, at *1 (E.D. Cal. Feb. 10 11, 2021). Here, Plaintiff’s causes of action arise under California law. See ECF No. 1-2 11 (“Compl.”). And under California law, where Plaintiffs’ a cause of action for or against a 12 person is generally not extinguished by that person’s death. See Cal. Civ. Proc. Code § 13 377.20(a) (“Except as otherwise provided by statute, a cause of action for or against a 14 person is not lost by reason of the person's death, but survives subject to the applicable 15 limitations period.”); see also Martinez v. Animal Health Int’l, Inc., No. 16 121CV00965JLTSKO, 2022 WL 2791171, at *1 (E.D. Cal. July 15, 2022). 17 The Ninth Circuit has explained that Rule 25 requires two affirmative steps to trigger 18 the 90-day period: 19 First, a party must formally suggest the death of the party 20 upon the record . . . . Second, the suggesting party must serve 21 other parties and nonparty successors or representatives of the 22 deceased with a suggestion of death in the same manner as 23 required for service of the motion to substitute . . . . Thus, a party 24 may be served the suggestion of death by service on his or her 25 attorney, . . . while non-party successors or representatives of the 26 deceased party must be served the suggestion of death in the 27 manner provided by Rule 4 for the service of a summons. 28 Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994) (internal citations omitted). Under 1 || Barlow, the defendant has some obligation to identify the plaintiff's representative or 2 || successor and to serve the notice of death on that party. See Gilmore v. Lockard, 936 F.3d 3 865-68 (9th Cir. 2019). And “any notice of death filed by a decedent’s lawyer is of 4 ||no effect under Rule 25(a)(1) and does not trigger the 90-day time period established by 5 || Rule 25(a)(1).”. Woodson, 2014 WL 7462509, at *2. 6 Accordingly, Defendant is ORDERED to provide the Court with a formal notice of 7 Plaintiff's death and to serve that notice on Plaintiff's representative or successor. If 8 Defendant is unable to identify Plaintiff's representative or successor, Defendant SHALL 9 || FILE a notice with the Court explaining the steps that it has taken to locate □□□□□□□□□□□ 10 ||representative or successor. See Gruenberg y. Maricopa Cnty. Sheriff's Off., 11 CV 06-0397-PHX-SMM (DKD), 2008 WL 2001253, at *1—2 (D. Ariz. May 7, 2008) 12 || (dismissing an action without prejudice after the plaintiff died and the defendants could not 13 || locate a successor). 14 IT IS SO ORDERED. 15 ||Dated: March 5, 2025 tt 16 jen Janis L. Sammartino 7 United States District Judge 18 19 20 21 22 23 24 25 26 27 28