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Williams v. Andreason

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


November 10, 2009

CHRISTOPHER WILLIAMS, PLAINTIFF,
v.
ANDREASON, ET AL., DEFENDANTS.

FINDINGS AND RECOMMENDATIONS

On November 29, 2004, plaintiff commenced this action alleging that defendants violated his civil rights. See 42 U.S.C. § 1983. On July 7, 2009, after the court's pretrial order was returned as undeliverable by mail because plaintiff is deceased, the court ordered defendant to file a proof of service of the suggestion of death on the nonparty successors or representatives of plaintiff, or a declaration indicating why service was not possible and detailing the efforts made to achieve it. Dckt. No. 59. On August 6, 2009, defendants' counsel filed a declaration detailing her attempts to serve deceased plaintiff's next of kin with a statement noting his death. Defendants' filing triggered the 90-day period within which a person who wishes to substitute for the deceased may file a motion for substitution. Fed. R. Civ. P. 25(a)(1). Dismissal is mandatory if no such motion is filed within the 90-day period. Id.

The court finds that 90 days have passed since defendants filed the declaration, and no motion for substitution has been filed.

Accordingly, it hereby is RECOMMENDED that this action be dismissed pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20091110

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