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Robinson v. Advanced Decoy Research

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 16, 2008

RANDALL W. ROBINSON, PLAINTIFF,
v.
ADVANCED DECOY RESEARCH, INC., ET. AL., DEFENDANT.

The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER GRANTING EX PARTE APPLICATION TO EXTEND DEADLINE FOR FILING MOTION TO SUBSTITUTE

The Court has reviewed the ex parte application filed by the Defendant. Defendant argues that the 90 day time period for filing a motion to substitute a new party in place of deceased should not begin to run until the Suggestion of Death has been formally served on Plaintiff's successors. Federal Rule of Civil Procedure Rule 25(a) requires that the suggesting party must formally serve other parties and non-party successors or representatives of the deceased in order for the 90 day time period to run. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). The Ninth Circuit explained that the purpose of these service requirements is to ensure that the successors who are non-parties to the suit are aware of their need to act to preserve the claims. Id.

Here, although Defendant notes that Plaintiff's counsel has had some discussions with the deceased plaintiff's family, formal service was not effected on all successors until April 10, 2008. The Court agrees that these personal discussions do not satisfy the procedural requirements of Rule 25. The Court GRANTS Defendant's ex parte application to extend the deadline to file a motion to substitute. The 90 day period for filing a motion to substitute shall run from the time that Plaintiff's successors and representatives were formally served with the Suggestion of Death.

IT IS SO ORDERED.

20080616

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