Fraher v. Suryadevara, No. 1:2006cv01120 - Document 128 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS Recommending DENIAL of 107 MOTION, Without Prejudice, as MOOT, signed by Magistrate Judge Gary S. Austin on 1/11/2010. Referred to Judge Anthony W. Ishii; Objections to F&R due by 2/1/2010. (Sondheim, M)
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Fraher v. Suryadevara Doc. 128 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CECILIA FRAHER, 10 Plaintiff, 11 12 CASE NO. 1:06-cv-01120-AWI-GSA PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF MOTION, WITHOUT PREJUDICE, AS MOOT v. SURYDEVARA, et al., 13 (Doc. 107) Defendants. FIFTEEN-DAY OBJECTION PERIOD / 14 15 This is a civil action filed pursuant to 42 U.S.C. § 1983 and California tort law by Plaintiff 16 Cecilia Fraher. On August 25, 2009, the Court held a hearing during which, in relevant part, 17 Plaintiff’s motion to substitute Mary Lee Gill as the successor in interest for deceased Defendant 18 Nancy Spaeder was discussed. Fed. R. Civ. P. 25(a)(1). As discussed during the hearing, Plaintiff’s 19 counsel was to do further investigation into the proper party to substitute for Ms. Spaeder, who was 20 not a state employee and instead worked for a private company under contract with the California 21 Department of Corrections and Rehabilitation. At issue was whether Mary Lee Gill was in fact the 22 proper party to substitute or whether Ms. Spaeder’s former employer should instead be subject to 23 substitution. 24 Subsequently, on October 16, 2009, Plaintiff filed a third amended complaint naming the 25 Estate of Nancy Spaeder, R.N., Sampath Suryadevara, M.D., and Mohammad Ashraf, M.D. as 26 defendants. A summons was issued for the Estate of Nancy Spaeder, R.N. on October 30, 2009, and 27 service is in process. 28 /// 1 Dockets.Justia.com 1 The second amended complaint has been superceded by the filing of the third amended 2 complaint, in which the Estate of Nancy Spaeder, R.N. is named as a defendant. No evidence in the 3 record to the contrary and with time left for service to be effected, the Court presumes service on the 4 party found to be proper by Plaintiff’s counsel is pending. Plaintiff’s motion to substitute Mary Lee 5 Gill for Nancy Spaeder, named in the second amended complaint, has been rendered moot, and the 6 Court HEREBY RECOMMENDS denial of the motion, without prejudice, on that ground. 7 These Findings and Recommendations will be submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Any objections must 9 be in writing and must be filed within fifteen (15) days from the date of service of these Findings 10 and Recommendations. The document should be captioned “Objections to Magistrate Judge’s 11 Findings and Recommendations.” Failure to file objections within the specified time may waive the 12 right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 IT IS SO ORDERED. Dated: 6i0kij January 11, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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