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Barrett v. Negrete

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 16, 2009

STEPHEN J. BARRETT, PLAINTIFF,
v.
CARLOS F. NEGRETE, HULDA CLARK, DBA NEW CENTURY PRESS, DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING WITHOUT PREJUDICE EX PARTE MOTION TO SUBSTITUTE ESTATE OF HULDA CLARK AS DEFENDANT [doc. #146]

On September 3, 2009, defendant Hulda Clark died. Plaintiff provided a notice of her death on October 28, 2009. On October 30, 2009, plaintiff filed an ex parte motion to substitute the Estate of Hulda Clark in place of Hulda Clark dba New Century Press contending that he will be irreparably harmed if Hulda Clark's estate is not substituted as a defendant in this action. [doc. #146] The Court ordered a response to the ex parte motion which Negrete filed. On November 12, 2009, a telephonic status conference was held with respect to the ex parte motion and the trial date of December 8, 2009.

When a party dies and the claim is not extinguished by applicable substantive law, the court may order substitution of the deceased party with the proper legal representative. FED. R. CIV. P. 25(a)(1); Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 1996). Any party to the action or the deceased party's successors must file a "statement noting death" and must serve it in the same manner as a motion to substitute parties. FED. R. CIV. P. 25(a) (3); see Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). The filing of the "statement noting death" commences the running of a 90 day limitations period for substitution of the deceased party.

R. CIV. P. 25(a)(1); see Barlow, 39 F.3d at 233-34. If the motion for substitution is not made within the 90 day limitation period, the action by or against the decedent "must be dismissed." FED. R. CIV. P. 25(a)(1).

Here, plaintiff filed a notice of Clark's death that triggered the 90 day period for the filing of a motion to substitute. Plaintiff has timely filed a motion for substitution but notes that no probate appears to have been opened. In order to litigate his claims against Hulda Clark, her legal representative or successor in interest must be named and substituted in this action. Plaintiff suggests that Hulda Clark is survived by her son, Geoff Clark, and the Court should name him as her legal representative because he is her closest living relative and heir to her estate.

Negrete states in his opposition that neither an estate representative nor a successor has been appointed by a probate court in the United States or in Mexico where Hulda Clark was a resident. (Opp. at 2.) Negrete states that "it is likely that the estate could be probated in Mexico." Id.

Finally, Negrete correctly argues that the federal court cannot appoint Geoff Clark or anyone else as a personal representative. Only a state probate court is empowered to make such an appointment. CAL. PRO. CODE §§ 8400, 8405, 8420, 8440, 8460.

Because the Court cannot appoint a legal representative for Hulda Clark and probate has not been initiated whereby an estate representative or successor would be appointed, the Court DENIES WITHOUT PREJUDICE plaintiff's ex parte motion to substitute the estate of Hulda Clark in place of defendant Hulda Clark, dba New Century Press.

IT IS SO ORDERED.

20091116

© 1992-2009 VersusLaw Inc.



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