Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983 against various defendants. Service on one defendant, Howard, was returned with a statement that Howard was deceased. By order filed on June 25, 2008, the court informed plaintiff of this fact. On August 14, 2008, plaintiff filed a motion to substitute defendant Howard's estate in as a defendant in this action, pursuant to Fed. R. Civ. P. 25(a).*fn1
Plaintiff states that despite his efforts at investigation, he does not know whether such an estate exists, or whom the executor might be. Nonetheless, he requests service of the Rule 25 motion on the executor of defendant Howard's estate.
The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262. On November 7, 2008, the magistrate judge filed findings and recommendations which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Plaintiff has filed objections to the findings and recommendations. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case, and orders as follows.
Fed. R. Civ. P. 25(a)(1) provides:
If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.
Plaintiff's section 1983 claim has not been extinguished. Because "Section 1983 does not deal expressly with the question of survivorship," Pritchard v. Smith, 289 F.2d 153, 155 (8th Cir. 1961), federal courts to look to state law in determining whether section 1983 claims survive the death of a defendant, provided that state law is not inconsistent with federal law. Id. at 157 (citing 42 U.S.C. § 1988), Moor v. County of Alameda, 411 U.S. 693, 703 (1973) (citing Pritchard, 289 F.2d 153) ("it has been held that pursuant to § 1988[,] state survivorship statutes . . . may be used in the context of actions brought under § 1983."), see also Robertson v. Wegmann, 436 U.S. 584, 589 (1978) (applying state law to determine whether a section 1983 claim survived death of the plaintiff). The applicable California law, Cal. Code Civ. P. § 377.20(a), provides that "Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period." Accordingly, at this stage, the court concludes that Howard's death did not extinguish the claim against him.
Applying the remaining provisions of Rule 25(a)(1) leaves plaintiff in a difficult position. Plaintiff is the party least able to discover the identity, if any, of Howard's successor or the executor of his estate. Rule 25 nonetheless apparently compels plaintiff to name these individuals within a small window of time. Faced with similar situations, courts have extended the ninety-day period established by Rule 25, arriving at this result in two ways.
One line of cases holds that a suggestion*fn2 of death does not set in motion Rule 25(a)(1)'s ninety-day limitation unless the suggestion identifies the representative or successor who may be substituted as a party. It would hardly be consistent with the just, speedy, and inexpensive determination of civil actions . . . to place upon the plaintiff the burden of locating the representative of the estate within 90 days.
McSurely v. McClellan, 753 F.2d 88, 98 (D.C. Cir. 1985) (quoting Rende v. Kay, 415 F.2d 983, 985 (D.C. Cir. 1969)) (internal citations, quotations, and modifications omitted).*fn3 In McSurely defendants had filed a petition for Supreme Court certiorari that stated that defendants were deceased. The D.C. Circuit held that even though this petition effectively notified plaintiff of the fact of death, the petition did not start the running of Rule 25's 90 day period, because it "did not identify the decedents' 'successors' or 'representatives.'" Id.
McSurely rooted the requirement that a statement of death identify successors in the advisory committee note to Rule 25. The note states that [the] time limit for the motion to substitute [is] based not upon the time of the death, but rather upon the time information of the death is provided by means of a suggestion of death upon the record. . . . A motion to substitute may be made by any party or by the representative of the deceased party without awaiting the suggestion of death. Indeed, the motion will usually be so made. If a party or the representative of the deceased party desires to limit the time within which another may make the motion, he may do so by suggesting the death upon the record.
The D.C. Circuit has interpreted the committee's statement "that suggestion of death could be made by 'the representative of the deceased party'" as "plainly contemplat[ing] that the suggestion emanating from the side of the deceased would identify a representative of the estate, such as an executor or administrator, who could be substituted for the deceased as a party, with the action continued in the name of the representative." Rende, 415 F.2d at 985.
The Second Circuit has reached essentially the same outcome, but it has rejected the D.C. Circuit's reasoning in McSurely and Rende. Explicitly declining to follow these cases, the Second Circuit stated:
[R]ule  does not require that the statement identify the successor or legal representative; it merely requires that the statement of death be served on the involved parties. Were there no other manner in which to avoid the particular dilemma identified by the court in Rende, we might see the wisdom of the requirement. However, the Federal Rules of Civil Procedure do provide what we believe is the proper solution.
Unicorn Tales v. Banerjee, 138 F.3d 467, 470 (2d Cir. 1998). That solution is a motion under Fed. R. Civ. P. 6(b) to enlarge the time to file a motion for substitution.*fn4 Although Rule 25 states that an action "must" be dismissed if a motion to substitute is not brought within ninety days, this has been held not to preclude a Rule 6(b) motion to enlarge this timeframe. Rule 6(b) explicitly specifies a number of time periods that may not be expanded. Rule 25(a)(1) motions were formerly included on this list, but have since been removed, indicating that the period for Rule 25 motions may be extended. Under Unicorn Tales, the ninety-day period ...