Owens v. FedEx Office and Print Services, Inc. et al, No. 1:2016cv01141 - Document 27 (E.D. Cal. 2017)

Court Description: Findings and Recommendations regarding Dismissal of Action re 1 Complaint, signed by Magistrate Judge Barbara A. McAuliffe on 9/29/2017. Matter referred to Judge Ishii. Objections to F&R due by 10/16/2017. (Rosales, O)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 ARTHUR OWENS, 10 11 12 Plaintiff, v. 13 FEDEX OFFICE AND PRINT SERVICES, INC., dba FEDEX OFFICE #5181, et al., 14 Defendants. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:16-cv-01141-AWI-BAM FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOURTEEN-DAY DEADLINE 16 17 I. Background 18 Plaintiff Arthur Owens (“Plaintiff”), through counsel, initiated this action under the 19 Americans with Disabilities Act on August 4, 2016, against Defendants FedEx Office and Print 20 Services, Inc., dba FedEx Office #5181; Irwin Hoffman, as Trustee of the Irwin Hoffman 21 Irrevocable Trust Agreement dated 3/19/91, and as Trustee of the Hoffman Trust dated 11/20/98; 22 and Terry Poders Hoffman, as Trustee of the Hoffman Trust dated 11/20/98. (Doc. 1). 23 Following service of the complaint, Plaintiff reached a settlement with Defendant FedEx 24 Office and Print Services, Inc., dba FedEx Office #5181, and filed a notice of voluntary 25 dismissal only as to this defendant on October 6, 2016. (Docs. 11, 15.) Based on the notice of 26 dismissal, the action was terminated as to Defendant FedEx Office and Print Services, Inc., dba 27 FedEx Office #5181, by operation of law pursuant to Federal Rule of Civil Procedure 41(a)(1). 28 (Doc. 22.) 1 1 On October 17, 2016, Defendants Irwin Hoffman, as Trustee of the Irwin Hoffman 2 Irrevocable Trust Agreement dated 3/19/91, and as Trustee of the Hoffman Trust dated 11/20/98, 3 and Terry Poders Hoffman, as Trustee of the Hoffman Trust dated 11/20/98 filed an answer to 4 the complaint. (Doc. 16.) 5 Shortly thereafter, on October 20, 2016, Plaintiff’s counsel, Tanya E. Moore, filed a 6 statement pursuant to Federal Rule of Civil Procedure 25(a) noting the death of Plaintiff Arthur 7 Owens during the pendency of this action. (Doc. 18.) 8 On November 4, 2016, the Court stayed this action pending substitution into this case of 9 a representative on behalf of Plaintiff’s estate. The Court directed Plaintiff’s representative to 10 either file a motion for substitution of parties in this action on or before January 17, 2017, or a 11 stipulation for dismissal of the action. (Doc. 20.) 12 On January 20, 2017, Plaintiff’s counsel filed a declaration indicating that she had been 13 in contact with Plaintiff’s brother, Charles Owens, whom she believed to be Plaintiff’s next of 14 kin. Mr. Charles Owens advised her that there would be no probate proceeding with regard to 15 Plaintiff’s estate and thus no executor or administrator of Plaintiff’s estate would be named. 16 Plaintiff’s counsel then advised Mr. Owen that he should seek the advice of an attorney with 17 regard to the survival of any of Plaintiff’s claims, and the ability of the estate to obtain any 18 recovery in this action. (Doc. 21.) Plaintiff’s counsel mailed a copy of the declaration to Mr. 19 Owens by first class mail on January 20, 2017. (Doc. 21-1.) 20 On March 7, 2017, the Court held a telephonic status conference. During the conference, 21 it was confirmed that no motion for substitution had been filed within the deadline prescribed by 22 Federal Rule of Civil Procedure 25(a)(1), and that the Court intended to issue findings and 23 recommendations regarding dismissal of this action. (Doc. 24.) 24 On April 10, 2017, the Court issued an order directing Plaintiff’s counsel to supplement 25 the statement noting a party’s death with evidence of proper service on Plaintiff’s family 26 member(s) in compliance with Federal Rules of Civil Procedure 4 and 25(a)(1). (Doc. 25.) 27 28 2 1 On April 11, 2017, Plaintiff’s counsel filed a certificate of service indicating that the 2 statement noting a party’s death had been served on Charles Owens by mail on the same date. 3 (Doc. 26.) 4 II. 5 Pursuant to Federal Rule of Civil Procedure 25(a), if a party dies and a motion for 6 substitution “is not made within 90 days after service of a statement noting the death, the action 7 by or against the decedent must be dismissed.” Fed. R. Civ. P. 25(a)(1). “Two things are 8 required for the running of the ninety-day period to commence: a party must (1) formally suggest 9 the death of the party on the record, and (2) serve the suggestion of death on the other parties and 10 nonparty successors or representatives.” Rodriguez v. Hefflefinger, No. 1:13-cv-00231-DAD- 11 GSA, 2017 WL 900731, at *1 (E.D. Cal. Mar. 6, 2017) (citing Barlow v. Ground, 39 F.3d 231, 12 233 (9th Cir. 1994)). A party may be served with the suggestion of death by service on his or her 13 attorney, and a non-party successor or representative of the deceased party must be served the 14 suggestion of death in the manner provided for in Rule 4 for the service of a summons. Fed. R. 15 Civ. P. 25(a)(3); Barlow, 39 F.3d at 232–34. Discussion 16 Here, Plaintiff’s counsel formally suggested Plaintiff’s death on the record by filing a 17 statement on October 20, 2016. (Doc. 18.) Service of the suggestion of death was electronically 18 served on defendants’ counsel on the same date. However, as of January 20, 2017, counsel was 19 informed that no executor or administrator of Plaintiff’s estate was to be named. Thus, no 20 representative of Plaintiff’s estate could be served with the suggestion of death.1 (Doc. 21.) 21 Based on this information, the ninety-day period for filing a motion for substitution commenced 22 no later than January 20, 2017, and any motion for substitution must have been filed no later than 23 April 20, 2017. No motion for substitution of Plaintiff’s representative was filed within the time 24 prescribed, and Plaintiff’s next-of-kin also has not filed a motion for substitution. Accordingly, 25 this action brought by the decedent, Plaintiff Arthur Owens, must be dismissed. Fed. R. Civ. P. 26 25(a)(1). 27 1 28 Nevertheless, counsel was directed to serve a copy of the suggestion of death on Plaintiff’s next-of-kin. (Doc. 25.) On April 11, 2017, Plaintiff’s counsel filed a certificate of service indicating that Plaintiff’s next-of-kin, Charles Owens, was served with the suggestion of death by mail on April 11, 2017. (Doc. 26.) 3 1 III. 2 Based on the foregoing, IT IS HEREBY RECOMMENDED that this action be dismissed 3 Conclusion and Recommendation pursuant to Federal Rule of Civil Procedure 25(a)(1). 4 These Findings and Recommendations will be submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 6 fourteen (14) days after being served with these Findings and Recommendations, the parties 7 may file written objections with the Court. The document should be captioned “Objections to 8 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 9 objections within the specified time may result in the waiver of the “right to challenge the 10 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 11 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 13 14 IT IS SO ORDERED. Dated: /s/ Barbara September 29, 2017 15 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 4