1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 MARILYN MORTON, individually, and Case No. 21-cv-1428-MMA-DDL as Successor in Interest to Joseph Morton, 13 et al., ORDER DENYING PLAINTIFFS’ 14 MOTION TO SUBSTITUTE LINNEA Plaintiffs, MORTON AS SUCCESSOR IN 15 v. INTEREST TO DEAN MORTON 16 UNDER FEDERAL RULE OF CIVIL COUNTY OF SAN DIEGO, et al, PROCEDURE 25 17 Defendants.
18 [Doc. No. 261] 19 20 21 22 23 24 Pending before the Court is Plaintiffs Marilyn Morton and Dean Morton’s 25 (“Plaintiffs”) motion to substitute parties pursuant to Federal Rule of Civil Procedure 25.1 26 Doc. No. 261. For the reasons discussed below, the Court DENIES the Motion. 27
28 1 I. RELEVANT BACKGROUND 2 The Court discusses this action’s background in detail in its prior orders and 3 incorporates that discussion herein. Doc. No. 253. For purposes of this motion, the 4 Court provides the following summary: 5 On May 11, 2020, Joseph Earl Morton was arrested. Id. at 2. On May 17, 2020, 6 after a series of evaluations and interactions with jail medical staff, Mr. Morton 7 committed suicide by hanging in his cell. Id at 6. 8 Following his death in custody, Joseph’s biological parents, Plaintiffs Marilyn 9 Morton and Dean Morton, filed this action. Doc. No. 1. Plaintiff Marilyn Morton 10 asserted claims both individually and as Mr. Morton’s successor in interest for: 11 inadequate medical care in violation of Mr. Morton’s 14th Amendment rights against the 12 individual Defendants (Claim 1); inadequate suicide prevention policy and training in 13 violation of Mr. Morton’s 14th Amendment rights against the County of San Diego and 14 Liberty Healthcare (Claim 2); failure to summon care (Claim 3); wrongful death (Claim 15 4); and professional negligence (Claim 5). See generally Doc. No. 190. Plaintiff Dean 16 Morton asserted claims individually for failure to summon care (Claim 3); wrongful 17 death (Claim 4); and professional negligence (Claim 5). Id. Both Plaintiffs’ state law 18 claims are brought under California law. 19 In 2024, as the parties briefed summary judgment, they revealed that Plaintiff Dean 20 Morton passed away at some undisclosed point prior, something unknown to the Court. 21 See Doc. No. 253 at 10–11. The Court directed counsel for Plaintiffs to file a motion to 22 substitute parties pursuant to Rule 25 within 90 days, should a proper individual seek to 23 substitute themself in Plaintiff Dean Morton’s place. Id. at 67. 24 On March 12, 2025, counsel for Plaintiffs filed this motion to substitute Plaintiffs’ 25 daughter, Linnea Morton, as a plaintiff in this matter for now-deceased Dean Morton 26 pursuant to Rule 25(a). Doc. No. 261. The basis for the motion was that, under 27 California law, Linnea Morton should be substituted as the successor-in-interest to Dean 28 Morton for purposes of this litigation. Id. Plaintiffs represent that Dean Morton passed 1 away on July 2, 2022, in Wisconsin, his state of residence, and provide a copy of his 2 death certificate. Doc. No. 261-2 at 5. In support of the motion, Plaintiffs provide 3 declarations from Dean Morton’s wife and three children—Linnea Morton, Marilyn 4 Morton, Brian Morton, and Elizabeth Helminiak—all indicating that: (1) Dean Morton 5 died intestate; (2) he was survived by his wife and three shared children; (3) his wife and 6 children agree Linnea Morton should be appointed as Successor in Interest; (4) no 7 proceeding was pending in California for Dean Morton’s estate; (5) to the declarants’ 8 knowledge, no other person has a superior claim to Linnea Morton as Dean Morton’s 9 personal representative or successor in interest; and (6) they each waive personal service 10 of the Statement Noting Death and the pending motion under Rule 25(a)(3). See Doc. 11 No. 261-2 at 2–3; Doc No. 261-3 at 2; Doc. No. 261-4 at 2–3 ; Doc. No. 261-5 at 2. 12 On July 2, 2025, the Court issued an order requiring Plaintiffs to file a 13 supplemental brief. Doc. No. 273. The death certificate filed in support of the motion 14 reflects Dean Morton was a resident of Wisconsin, where he died in July 2022. Doc. No. 15 261-2 at 5. As “the question of who is a proper party is a substantive issue” for which the 16 Court “must rely upon state law,” the Court ordered Plaintiffs to address whether 17 Wisconsin or California law governs whether Ms. Linnea Morton qualifies as a 18 “representative” or “successor” for purposes of Rule 25. Doc. No. 273 (citing In re 19 Baycol Prods. Litig., 616 F.3d 778, 787–88 (8th Cir. 2010). 20 At the Court’s request, Plaintiffs filed supplemental briefing on July 11, 2025. 21 Doc. No. 274. Within, Plaintiffs assert that, in fact, under applicable law the correct 22 individual to substitute into Dean Morton’s place is Marilyn Morton, his wife and the 23 other plaintiff in this action. Doc. No. 274 at 3–4. Plaintiffs also request the Court 24 substitute Marilyn Morton as a plaintiff for Dean Morton’s claims accordingly. Id. at 4. 25 /// 26 /// 27 /// 28 /// 1 II. LEGAL STANDARD 2 Rule 25 governs the substitution of parties. Subsection (a) provides: 3 (a) Death.
4 (1) Substitution if the Claim Is Not Extinguished. If a party dies 5 and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may 6 be made by any party or by the decedent's successor or 7 representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against 8 the decedent must be dismissed. 9 . . . (3) Service. A motion to substitute, together with a notice of 10 hearing, must be served on the parties as provided in Rule 5 and 11 on nonparties as provided in Rule 4. A statement noting death must be served in the same manner. Service may be made in any 12 judicial district. 13 Fed. R. Civ. P. 25(a). If the court determines that a party has met the requirements of 14 Rule 25, “[t]he substituted party steps into the same position as [the] original party.” 15 Estate of O’Shea v. Am. Solar Sols., Inc., No. 14cv894-L-RBB, 2021 WL 4819311 at *1, 16 (S.D. Cal. Oct. 15, 2021) (quoting Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 17 1996) (internal quotation marks omitted, brackets original)). 18 III. DISCUSSION 19 Plaintiffs concede that “[t]he appropriate successor to Dean Morton’s cause of 20 action is not Linnea Morton, decedent’s daughter, but Marilyn Morton, decedent’s wife.” 21 Doc. No. 274 at 4. Accordingly, the Court DENIES Plaintiffs’ motion to substitute 22 Linnea Morton in Dean Morton’s place. Doc. No. 261. Though Plaintiffs’ supplemental 23 brief includes a request to substitute Marilyn Morton in place of decedent Dean Morton 24 in this action, such a request is not properly before the Court in this motion. Rule 25 25(a)(3) sets forth service and notice requirements for both the motion to substitute and 26 the statement noting death. Assuming, without deciding, that Rule 25’s requirements are 27 satisfied as to Plaintiffs’ motion to substitute Linnea Morton, they are not satisfied as to 28 1 || the request to substitute Marilyn Morton, as it was not raised in a noticed motion properly 2 served on all parties and non-parties, but instead raised for the first time in the 3 || supplemental brief; nor was it addressed in any of the declarations accompanying the 4 ||motion. See Fed. R. Civ. P. 25(a)(3).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 MARILYN MORTON, individually, and Case No. 21-cv-1428-MMA-DDL as Successor in Interest to Joseph Morton, 13 et al., ORDER DENYING PLAINTIFFS’ 14 MOTION TO SUBSTITUTE LINNEA Plaintiffs, MORTON AS SUCCESSOR IN 15 v. INTEREST TO DEAN MORTON 16 UNDER FEDERAL RULE OF CIVIL COUNTY OF SAN DIEGO, et al, PROCEDURE 25 17 Defendants.
18 [Doc. No. 261] 19 20 21 22 23 24 Pending before the Court is Plaintiffs Marilyn Morton and Dean Morton’s 25 (“Plaintiffs”) motion to substitute parties pursuant to Federal Rule of Civil Procedure 25.1 26 Doc. No. 261. For the reasons discussed below, the Court DENIES the Motion. 27
28 1 I. RELEVANT BACKGROUND 2 The Court discusses this action’s background in detail in its prior orders and 3 incorporates that discussion herein. Doc. No. 253. For purposes of this motion, the 4 Court provides the following summary: 5 On May 11, 2020, Joseph Earl Morton was arrested. Id. at 2. On May 17, 2020, 6 after a series of evaluations and interactions with jail medical staff, Mr. Morton 7 committed suicide by hanging in his cell. Id at 6. 8 Following his death in custody, Joseph’s biological parents, Plaintiffs Marilyn 9 Morton and Dean Morton, filed this action. Doc. No. 1. Plaintiff Marilyn Morton 10 asserted claims both individually and as Mr. Morton’s successor in interest for: 11 inadequate medical care in violation of Mr. Morton’s 14th Amendment rights against the 12 individual Defendants (Claim 1); inadequate suicide prevention policy and training in 13 violation of Mr. Morton’s 14th Amendment rights against the County of San Diego and 14 Liberty Healthcare (Claim 2); failure to summon care (Claim 3); wrongful death (Claim 15 4); and professional negligence (Claim 5). See generally Doc. No. 190. Plaintiff Dean 16 Morton asserted claims individually for failure to summon care (Claim 3); wrongful 17 death (Claim 4); and professional negligence (Claim 5). Id. Both Plaintiffs’ state law 18 claims are brought under California law. 19 In 2024, as the parties briefed summary judgment, they revealed that Plaintiff Dean 20 Morton passed away at some undisclosed point prior, something unknown to the Court. 21 See Doc. No. 253 at 10–11. The Court directed counsel for Plaintiffs to file a motion to 22 substitute parties pursuant to Rule 25 within 90 days, should a proper individual seek to 23 substitute themself in Plaintiff Dean Morton’s place. Id. at 67. 24 On March 12, 2025, counsel for Plaintiffs filed this motion to substitute Plaintiffs’ 25 daughter, Linnea Morton, as a plaintiff in this matter for now-deceased Dean Morton 26 pursuant to Rule 25(a). Doc. No. 261. The basis for the motion was that, under 27 California law, Linnea Morton should be substituted as the successor-in-interest to Dean 28 Morton for purposes of this litigation. Id. Plaintiffs represent that Dean Morton passed 1 away on July 2, 2022, in Wisconsin, his state of residence, and provide a copy of his 2 death certificate. Doc. No. 261-2 at 5. In support of the motion, Plaintiffs provide 3 declarations from Dean Morton’s wife and three children—Linnea Morton, Marilyn 4 Morton, Brian Morton, and Elizabeth Helminiak—all indicating that: (1) Dean Morton 5 died intestate; (2) he was survived by his wife and three shared children; (3) his wife and 6 children agree Linnea Morton should be appointed as Successor in Interest; (4) no 7 proceeding was pending in California for Dean Morton’s estate; (5) to the declarants’ 8 knowledge, no other person has a superior claim to Linnea Morton as Dean Morton’s 9 personal representative or successor in interest; and (6) they each waive personal service 10 of the Statement Noting Death and the pending motion under Rule 25(a)(3). See Doc. 11 No. 261-2 at 2–3; Doc No. 261-3 at 2; Doc. No. 261-4 at 2–3 ; Doc. No. 261-5 at 2. 12 On July 2, 2025, the Court issued an order requiring Plaintiffs to file a 13 supplemental brief. Doc. No. 273. The death certificate filed in support of the motion 14 reflects Dean Morton was a resident of Wisconsin, where he died in July 2022. Doc. No. 15 261-2 at 5. As “the question of who is a proper party is a substantive issue” for which the 16 Court “must rely upon state law,” the Court ordered Plaintiffs to address whether 17 Wisconsin or California law governs whether Ms. Linnea Morton qualifies as a 18 “representative” or “successor” for purposes of Rule 25. Doc. No. 273 (citing In re 19 Baycol Prods. Litig., 616 F.3d 778, 787–88 (8th Cir. 2010). 20 At the Court’s request, Plaintiffs filed supplemental briefing on July 11, 2025. 21 Doc. No. 274. Within, Plaintiffs assert that, in fact, under applicable law the correct 22 individual to substitute into Dean Morton’s place is Marilyn Morton, his wife and the 23 other plaintiff in this action. Doc. No. 274 at 3–4. Plaintiffs also request the Court 24 substitute Marilyn Morton as a plaintiff for Dean Morton’s claims accordingly. Id. at 4. 25 /// 26 /// 27 /// 28 /// 1 II. LEGAL STANDARD 2 Rule 25 governs the substitution of parties. Subsection (a) provides: 3 (a) Death.
4 (1) Substitution if the Claim Is Not Extinguished. If a party dies 5 and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may 6 be made by any party or by the decedent's successor or 7 representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against 8 the decedent must be dismissed. 9 . . . (3) Service. A motion to substitute, together with a notice of 10 hearing, must be served on the parties as provided in Rule 5 and 11 on nonparties as provided in Rule 4. A statement noting death must be served in the same manner. Service may be made in any 12 judicial district. 13 Fed. R. Civ. P. 25(a). If the court determines that a party has met the requirements of 14 Rule 25, “[t]he substituted party steps into the same position as [the] original party.” 15 Estate of O’Shea v. Am. Solar Sols., Inc., No. 14cv894-L-RBB, 2021 WL 4819311 at *1, 16 (S.D. Cal. Oct. 15, 2021) (quoting Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 17 1996) (internal quotation marks omitted, brackets original)). 18 III. DISCUSSION 19 Plaintiffs concede that “[t]he appropriate successor to Dean Morton’s cause of 20 action is not Linnea Morton, decedent’s daughter, but Marilyn Morton, decedent’s wife.” 21 Doc. No. 274 at 4. Accordingly, the Court DENIES Plaintiffs’ motion to substitute 22 Linnea Morton in Dean Morton’s place. Doc. No. 261. Though Plaintiffs’ supplemental 23 brief includes a request to substitute Marilyn Morton in place of decedent Dean Morton 24 in this action, such a request is not properly before the Court in this motion. Rule 25 25(a)(3) sets forth service and notice requirements for both the motion to substitute and 26 the statement noting death. Assuming, without deciding, that Rule 25’s requirements are 27 satisfied as to Plaintiffs’ motion to substitute Linnea Morton, they are not satisfied as to 28 1 || the request to substitute Marilyn Morton, as it was not raised in a noticed motion properly 2 served on all parties and non-parties, but instead raised for the first time in the 3 || supplemental brief; nor was it addressed in any of the declarations accompanying the 4 ||motion. See Fed. R. Civ. P. 25(a)(3). This finding also comports with well-settled 5 || principles prohibiting a party from raising new facts or legal arguments in a reply brief. 6 ||Cf US. ex rel. Giles v. Sardie, 191 F. Supp. 2d 1117, 1127 (C.D. Cal. 2000) (“It is 7 |\|improper . . . to introduce new facts or different legal arguments in the reply brief than 8 those presented in the moving papers.”); Do v. Tri City Healthcare Dist., No. 19CV2253- 9 || MSB (NLS), 2020 WL 6484633 *2 (S.D. Cal. Nov. 4, 2020) (same). Thus, the Court 10 || will not consider that request at this time. 1] IV. CONCLUSION 12 For these reasons, the Court DENIES Plaintiffs’ motion to substitute Linnea 13 || Morton as the successor-in-interest to Dean Morton. This order is without prejudice to 14 || Plaintiffs filing a renewed motion to substitute Marilyn Morton as a plaintiff in Dean 15 ||Morton’s place. In the event Plaintiffs file such a motion, they must expressly address 16 timeliness of the motion, in addition to the Rule 25(a)’s substantive and procedural 17 ||requirements. See Fed. R. Civ. P. 25(a)(1); Doc. No. 253 at 67. Any renewed motion to 18 || substitute an individual as plaintiff for Dean Morton must be filed on or before 19 || August 11, 2025. motion is filed by this deadline, the claims asserted by Plaintiff 20 || Dean Morton “must be dismissed.” Fed. R. Civ. P. 25(a). 21 IT IS SO ORDERED. 22 Dated: July 28, 2025 pth Lu -{ hphltr 23 HON. MICHAEL M. ANELLO 24 United States District Judge 25 26 27 28