(PS) El Bey v. Accredited Home Lenders Inc et al, No. 2:2017cv02237 - Document 18 (E.D. Cal. 2018)
Court Description: ORDER signed by Magistrate Judge Carolyn K. Delaney on 5/14/18 ORDERING that The 4/30/18 FINDINGS AND RECOMMENDATIONS 16 are VACATED. And Defendant Wells Fargo Bank shall serve the suggestion of death upon the record pursuant to FRCP 25(a)(1) within twenty-one days of this order and shall file a certificate of service with the court. (Mena-Sanchez, L)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HAKEIM EL BEY, 12 13 14 15 16 No. 2:17-cv-02237 KJM CKD (PS) Plaintiff, v. ORDER ACCREDITED HOME LENDERS INC., et al, Defendants. 17 On April 30, 2018, the undersigned issued findings and a recommendation that this action 18 be dismissed due to plaintiff’s failure to timely oppose defendant’s motion to dismiss. (ECF No. 19 16.) On May 9, 2018, Howard Bey filed objections to the findings and recommendations, 20 asserting that he was the executor of plaintiff’s estate and seeking a 120-day continuance to 21 determine how best to proceed with the lawsuit on behalf of plaintiff’s heirs. (ECF No. 17.) 22 23 As it appears plaintiff is recently deceased, and good cause appearing, the undersigned will vacate the April 30, 2018 findings and recommendations. 24 Rule 25(a)(1) of the Federal Rules of Civil Procedure provides for the dismissal of an 25 action if a motion for substitution is not made within ninety days after service of a statement 26 noting plaintiff's death. Fed. R. Civ. P. 25(a)(1). As the remaining party, defendant will be 27 directed to serve the suggestion of death upon the record pursuant to Federal Rule of Civil 28 Procedure 25(a)(1). The suggestion of death, in order to be valid and to invoke the ninety day 1 1 limit for filing of a motion for substitution, should, if possible, identify the successor or 2 representative who may be substituted for decedent. Smith v. Planas, 151 F.R.D. 547 (S.D. N.Y. 3 1993). 4 Once the ninety-day clock starts, a motion for substitution may be filed by the appointed 5 executor or administrator of plaintiff’s estate. See Estate of Garcia-Vasquez v. County of San 6 Diego, 2008 WL 4183913 *6 (S.D.Cal. 2008) (“[a] decedent’s estate is no more than a collection 7 of assets and liabilities, and requires a real party in interest, such as a duly appointed executor or 8 administrator of the estate, for purposes of pursuing litigation.”). 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. The April 30, 2018 findings and recommendations are hereby VACATED; and 11 2. Defendant Wells Fargo Bank shall serve the suggestion of death upon the record 12 pursuant to Federal Rule of Civil Procedure 25(a)(1) within twenty-one days of this order and 13 shall file a certificate of service with the court. 14 Dated: May 14, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 2 / bey2237.suggestion of death 23 24 25 26 27 28 2
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