McAllister v. Gunja et al
Filing
40
ORDER to SHOW CAUSE Why Deceased Defendant Should Not be Dismissed, signed by Magistrate Judge Sheila K. Oberto on 5/24/2010. Plaintiff's Show Cause Response due by 6/28/2010. (Jessen, A)
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1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff has not filed a motion for substitution within the ninety (90) day deadline set forth in Rule 25(a)(1). 1 Plaintiff John I. McAllister ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 12, 2009, the Court issued an order directing the U.S. Marshal to serve Defendants with a summons and a copy of Plaintiff's complaint. (Doc. #18.) On April 29, 2009, a summons was returned unexecuted as to Defendant R. Boister. (Doc. #20.) The U.S. Marshal indicated that Defendant Boister is deceased. Plaintiff has not moved to substitute Boister's estate as a party. Nor has Plaintiff provided the name and address of the representative for service on the estate. Federal Rule of Civil Procedure 25(a)(1) provides: If a party dies and the claim is not extinguished, the court may order substitution of the proper party. 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. v. J.E. GUNJA, et al., Defendants. / JOHN I. MCALLISTER, Plaintiff, CASE NO. 1:06-cv-00082-OWW-SKO PC ORDER TO SHOW CAUSE WHY DECEASED DEFENDANT SHOULD NOT BE DISMISSED
UNITED STATES DISTRICT COURT
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Accordingly, Plaintiff is HEREBY ORDERED TO SHOW CAUSE within thirty (30) days why Defendant Boister should not be dismissed from this action pursuant to Federal Rule of Civil Procedure 25(a)(1).
IT IS SO ORDERED. Dated: ie14hj May 24, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE
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