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McTear v. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 14, 2009

JANIE MCTEAR, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

ORDER

Plaintiff, represented by counsel, filed a motion for summary judgment on August 27, 2008. Plaintiff was directed to file a motion for substitution under Federal Rule of Civil Procedure 25 because the court's review of the Social Security Death Database (Westlaw DEATH-ALL) indicated that plaintiff died on July 20, 2008. An extension of time was granted. Plaintiff has now filed a motion consisting of three sentences requesting the decedent's daughter be substituted in as the plaintiff. The motion is inadequate. No affidavit was submitted nor was any other evidence submitted in support of the motion. There is no explanation offered as to why the daughter is the appropriate party to substitute in as plaintiff, rather than the decedent's spouse.*fn1 There is no evidence submitted that the proposed person to be substituted in as plaintiff is in fact decedent's successor or that she has been appointed as representative of decedent's estate. See, e.g., Cal. Prob. Code § 8400 (person has no power to administer estate until person is appointed personal representative). For these reasons, the motion will be denied without prejudice.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion is denied.

2. Plaintiff shall file a renewed motion for substitution within twenty days from the date of this order, addressing the deficiencies noted above. Failure to file said motion shall result in a recommendation that the action be dismissed.


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