Rodriguez v. Well Path

[4] 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** Michael Rodriguez, 8 Case No. 2:19-cv-02074-ART-VCF Plaintiff, 9 vs. 10 Order Well Path, et al., 11 Defendants. Motion Requesting Directive (ECF No. 80) [13] 14 Incarcerated pro se plaintiff Michael Rodriguez filed a motion requesting directive. ECF No. 80. [15] Plaintiff’s motion pertains to the suggestion of death that the defendants filed regarding the death of [16] defendant Dr. Harry Leo Duran. ECF No. 72. I liberally construe plaintiff’s motion as a motion for [17] substitution of party pursuant to Federal Rule of Civil Procedure 25. ECF No. 189. I grant the motion in [18] part, as outlined in this order. [19] I. Background [20] Rodriguez brings multiple civil rights claims against multiple defendants, including claims of [21] deliberate indifference regarding his medical care against Dr. Duran. ECF No. 38. Plaintiff argues in his [22] 23 motion that he seeks the court’s directive regarding the suggestion of death. ECF No. 80. The defendants 24 filed a three-sentence response that states that plaintiff’s claims cannot proceed against the estate 25 (without citing to any legal authority) and arguing that only “[p]laintiff’s official capacity claims are appropriate of FRCP 25(d) relief.” ECF No. 81. Rodriguez argues in his reply that when the court [1] screened his complaint, it allowed the deliberate indifference claims against Dr. Duran to proceed. ECF [2] No. 82. [3] 4 II. Analysis 5 “If a party dies and the claim is not thereby extinguished,” as is the case here, “the court may 6 order substitution of the proper parties.” Fed. R. Civ. P. 25(a)(1). Any party or the decedent’s successor 7 or representative may make a motion for substitution. Id. If not made within ninety days after service of 8 a statement noting the death, the action must be dismissed with respect to the decedent. Id. The rule [9] requires that a motion to substitute, as well as the statement noting death, be served on parties pursuant [10] to Rule 5 and on non-parties pursuant to Rule 4. Fed. R. Civ. P. 25(a)(3). [11] “Although Rule 25(a)(1) could be clearer, a careful reading of the rule coupled with an [12] understanding of its function leads to the conclusion that the rule requires two affirmative steps in order [13] to trigger the running of the 90-day period. First a party must formally suggest the death of the party [14] upon the record.” Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994) (citing Anderson v. Aurotek, 774 15 F.2d 927, 931 (9th Cir. 1985); Grandbouche v. Lovell, 913 F.2d 835 (9th Cir. 1990); 3B Moore’s [16] 17 Federal Practice ¶ 25.06[3] (2d ed. 1991)). “Second, the suggesting party must serve other parties and 18 nonparty successors or representatives of the deceased with a suggestion of death in the same manner as 19 required for service of the motion to substitute.” Id. (citing Fed. R. Civ. P. 25(a)(1)). Barlow held that 20 the ninety-day period is not triggered with regard to claims against the decedent’s estate until the [21] appropriate representative of the estate is served a suggestion of death in conformity with Rule 4. Id. at [22] 233-34. [23] Rule 25(d) states: [24] An action does not abate when a public officer who is a party in an official capacity [2] dies, resigns, or otherwise ceases to hold office while the action is pending. The [1] officer’s successor is automatically substituted as a party. Later proceedings should 2 be in the substituted party’s name, but any misnomer not affecting the parties’ substantial rights must be disregarded. The court may order substitution at any time, 3 but the absence of such an order does not affect the substitution. 4 Fed. R. Civ. P. 25(d). [5] The defendants filed the suggestion of death in this case. In In re MGM Mirage Securities [6] 7 Litigation, 282 F.R.D. 600, 603 (D.Nev. June 14, 2012), Judge Navarro directed the defendants to 8 undertake an investigation regarding the status of the decedent’s estate or appropriate successor. In a 9 similar case, Judge Cobb also directed the defendants to investigate the status of the decedent’s estate: 10 the decedent was also a doctor in a deliberate indifference case brought by a pro se prisoner. See 11 Caballero v. Aranas, No. 3:19-cv-00079-MMD-WGC, ECF No. 189 (D. Nev. July 12, 2021). [12] I issue a similar order in this case. Plaintiff here is also a pro se inmate with limited or no [13] resources to discover this information, particularly when the plaintiff is precluded by regulations from [14] having the decedent’s direct contact information. I order the defendants’ counsel, Lewis Brisbois [15] Bisgaard & Smith LLP, to undertake an investigation regarding the status of the decedent’s estate (1) to [16] obtain information about the representative of the estate or the appropriate successor and (2) to notify [17] the same of this lawsuit. If such information is obtained, I order defense counsel Lewis Brisbois to serve [18] the notice of suggestion of death and notice of this lawsuit upon the representative or successor followed [19] 20 by proof of such service. 21 If defense counsel is unable to obtain such information, counsel at Lewis Brisbois must file a 22 declaration detailing the efforts made to comply with this order. Since Rule 25(d) only pertains to 23 official capacity claims, I need not address that issue in this order because the successor for those claims [24] is automatically substituted. See Rule 25(d). [3] ACCORDINGLY, 5 I ORDER that plaintiff Michael Rodriguez’s motion requesting directive (ECF No. 80) is 3 || GRANTED IN PART, as specified in this order. 4 I FURTHER ORDER that defense counsel at Lewis Brisbois Bisgaard & Smith LLP have until 5 || Friday, February 10, 2023, to comply with this order. 6 IT IS SO ORDERED. 7 DATED this 11th day of January 2023. . L# 9 CAM FERENBACH UNITED STATES MAGISTRATE JUDGE