Moreno v. Castlerock Farming and Transport, Inc.

Opinion

MARIA G. MORENO, ) Case No.: 1:12-cv-0556 JLT CDB ) Plaintiff, ) ORDER GRANTING DEFENDANTS’ MOTION ) TO DISMISS v. ) ) (Doc. 120) TRANSPORT, INC., et al., ) ) Defendants. ) )

Defendants Albert L. Good and Castlerock Farming & Transport, Inc., filed a statement reporting the death of Plaintiff Florencia Gutierrez on March 2, 2023, indicated they were informed Ms. Gutierrez was “unavailable to be deposed because she is deceased.” (Doc. 105 at 2.) Defendants now seek dismissal of Ms. Gutierrez as a plaintiff pursuant to Rule 25(a) of the Federal Rules of Civil Procedure. (Doc. 120; see also Doc. 121.) Plaintiffs did not oppose the motion.1 Pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure, the action may continue if a claim is not extinguished. “A motion for substitution may be made by any party or by the decedent’s successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.” Fed. R. Civ. P. 25(a)(1). If the requirements of Rule 25(a)(1) are met, “[t]he substituted party steps into the same position as [the]

1 Plaintiffs requested an extension of time to oppose the motion, and the Court granted the request. (Docs. 125, 126.) To original party.” Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 1996). As noted above, the “Statement Noting Death of Plaintiff Florencia Gutierrez” was filed on March 2, 2023. (Doc. 105.) Because the Statement was filed on the record, and the plaintiffs’ representatives received electronic service of the record, the 90-day period began to run. See Summerfield v. Fackrell, 2012 WL 113281, at *2 (E.D. Cal. Jan. 11, 2012) (before the 90-day period begins to run, the suggestion of death must be filed on the record and served to the other parties); see also Barlow vy. Ground, 39 F.3d 231, 233 (9th Cir. 1994). Although Plaintiffs were granted an extension of time to file a motion for substitution (Doc. 130), they failed to do so. Consequently, the claims of Florencia Gutierrez must be dismissed. See Fed. R. Civ. P. 25(a)(1). Based upon the foregoing, the Court ORDERS: 1. Defendants’ motion to dismiss (Doc. 120) is GRANTED. 2. Florencia Gutierrez is TERMINATED as a plaintiff in this action. 3. The claims for Florencia Gutierrez are DISMISSED with prejudice. Dated: _ February 8, 2024 ( LAW pA L. wan TED STATES DISTRICT JUDGE