Boyd v. Estioco et al
Filing
32
ORDER Re Reported Death of Plaintiff, signed by Magistrate Judge Michael J. Seng on 5/4/2010. (Case Management Deadline: 8/5/2010)(Sondheim, M)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 ESTIOCO, et al., 16 17 18 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 19 U.S.C. § 1983. 20 On April 16, 2010, counsel for Defendants filed a document entitled "Suggestion 21 of Death" which reflected counsel's belief that the Plaintiff died in March 2010. In an attached 22 declaration, counsel stated that on April 14, 2010, he had received electronic notice that an 23 attempt to serve an order on Plaintiff had been returned as undeliverable due to "death." Counsel 24 then contacted the Litigation Office at California State Prison, Sacramento, and was advised by 25 the Litigation Coordinator that Plaintiff had died in March 2010 although a death certificate had 26 1 Defendants. vs. WALTER BOYD, Plaintiff, 1:07 cv 01541 OWW MJS PC ORDER RE REPORTED DEATH OF PLAINTIFF IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
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not yet been issued. Absent evidence to the contrary, the court accepts the hearsay declaration of counsel as a reasonable basis for proceeding that the claimant has in fact died. Fed. R. Civ. P. 25(a)(1) and (2) provide, in an appropriate case, for continuation of
5 an action by properly substituted parties, if any, following the death of a party. Successors or 6 representatives of a deceased party may make a motion for substitution not later than 90 days after 7 service of a statement noting the death of the party. Absent such a motion for substitution, the 8 action must be dismissed as to a deceased party. 9 IT THEREFORE IS ORDERED that unless a motion for substitution of plaintiff or
10 other proper motion for relief is filed within ninety days of the date of service of this Order, this 11 case shall be dismissed. 12 13 14 15 16 IT IS SO ORDERED. 17 Dated: ci4d6 18 19 20 21 22 23 24 25 26 2 May 4, 2010 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE
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