(PC) Calhoun v. Gomez et al, No. 2:2012cv02856 - Document 69 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/5/2015 RECOMMENDING that plaintiff's 62 motion for extension of time be denied as both moot and untimely. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)
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(PC) Calhoun v. Gomez et al Doc. 69 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMONT L. CALHOUN, 12 Plaintiff, 13 14 No. 2:12-cv-2856-GEB-EFB P v. M. GOMEZ, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 On November 4, 2014, plaintiff filed a motion requesting “the most time that can be given 17 18 to determine exactly who is in control of [deceased defendant Merriweather’s] estate and what 19 their names are.” ECF No. 62 at 1. Plaintiff appears to be requesting additional time to obtain 20 information and to file a second motion for substitution of parties. Defendants filed an opposition 21 to plaintiff’s motion. ECF No. 66. For the reasons that follow, it is recommended that plaintiff’s 22 motion be denied. 23 I. BACKGROUND 24 On January 24, 2014, plaintiff informed the court that he had “receive[d] notice that [] 25 Merriweather is deceased.” ECF No. 27. Because no motion for substitution of Merriweather 26 had been filed within 90 days of that notice, see Fed. R. Civ. P. 25(a)(1), findings and 27 recommendations were issued on April 9, 2014, recommending that Merriweather be dismissed 28 from this action. ECF No. 40. Plaintiff filed objections, ECF No. 41, and requested an extension 1 Dockets.Justia.com 1 of time to file a motion for substitution under Federal Rule of Civil Procedure 25, ECF No. 47. 2 The court granted the extension, ECF No. 49, and plaintiff subsequently filed his motion for 3 substitution, ECF No. 56. Specifically, plaintiff’s motion requested that the court substitute the 4 Warden of California State Prison, Sacramento for Merriweather, as plaintiff was suing 5 Merriweather in his official capacity. ECF No. 56 at 1; see also Fed. R. Civ. P. 25(d) (explaining 6 that when a public officer who is a party in an official capacity dies, “[t]he officer’s successor is 7 automatically substituted as a party.”). On October 30, 2014, the court denied plaintiff’s motion 8 for substitution and dismissed Merriweather from this action. ECF No. 61; see also ECF No. 60 9 (explaining that “this is not an official capacity lawsuit”). 10 11 II. ANALYSIS While apparently ignoring the fact that the court has already dismissed Merriweather from 12 this action, plaintiff’s present motion suggests that he intends to file another motion for 13 substitution, this time pursuant to Rule 25(a). However, Rule 25(a)(1) provides that if a motion 14 for substitution “is not made within 90 days after service of a statement noting the death, the 15 action by or against the decedent must be dismissed.” Id. (emphasis added). Plaintiff received 16 service of a statement noting Merriweather’s death by at least January 24, 2014, as plaintiff 17 informed the court on that date that he had “receive[d] notice that [] Merriweather is deceased.” 18 ECF No. 27. Thus, under Rule 25(a)(1), the court was required to dismiss Merriweather if 19 plaintiff did not file a motion for substitution by April 24, 2014. Plaintiff’s request to extend that 20 deadline was granted, ECF No. 49, and he ultimately filed his motion for substitution which was 21 denied and Merriweather was dismissed. ECF No. 61. Thus, a further extension of the deadline 22 at this point serves no purpose. 23 Nor is there a showing of good cause. Even with the previous extension of 60 days, 24 plaintiff still has not complied with the requirements of Rule 25(a)(1). Further, plaintiff was 25 cautioned that “[t]he court is not inclined to grant additional requests for extensions of time.” See 26 ECF No. 49. In short, almost a year has passed since plaintiff received notice of Merriweather’s 27 death, and plaintiff is still requesting extensions of time to obtain information for another motion 28 for substitution. 2 1 2 3 4 III. RECOMMENDATION Accordingly, it is hereby RECOMMENDED that plaintiff’s motion for an extension of time (ECF No. 62) be denied as both moot and untimely. These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 6 after being served with these findings and recommendations, any party may file written 7 objections with the court and serve a copy on all parties. Such a document should be captioned 8 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 9 within the specified time may waive the right to appeal the District Court’s order. Turner v. 10 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 11 his objections petitioner may address whether a certificate of appealability should issue in the 12 event he files an appeal of the judgment in this case. 13 DATED: January 5, 2015. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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