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Fraher v. Surydevara

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 11, 2010

CECILIA FRAHER, PLAINTIFF,
v.
SURYDEVARA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF MOTION, WITHOUT PREJUDICE, AS MOOT (Doc. 107) FIFTEEN-DAY OBJECTION PERIOD

This is a civil action filed pursuant to 42 U.S.C. § 1983 and California tort law by Plaintiff Cecilia Fraher. On August 25, 2009, the Court held a hearing during which, in relevant part, Plaintiff's motion to substitute Mary Lee Gill as the successor in interest for deceased Defendant Nancy Spaeder was discussed. Fed. R. Civ. P. 25(a)(1). As discussed during the hearing, Plaintiff's counsel was to do further investigation into the proper party to substitute for Ms. Spaeder, who was not a state employee and instead worked for a private company under contract with the California Department of Corrections and Rehabilitation. At issue was whether Mary Lee Gill was in fact the proper party to substitute or whether Ms. Spaeder's former employer should instead be subject to substitution.

Subsequently, on October 16, 2009, Plaintiff filed a third amended complaint naming the Estate of Nancy Spaeder, R.N., Sampath Suryadevara, M.D., and Mohammad Ashraf, M.D. as defendants. A summons was issued for the Estate of Nancy Spaeder, R.N. on October 30, 2009, and service is in process.

The second amended complaint has been superceded by the filing of the third amended complaint, in which the Estate of Nancy Spaeder, R.N. is named as a defendant. No evidence in the record to the contrary and with time left for service to be effected, the Court presumes service on the party found to be proper by Plaintiff's counsel is pending. Plaintiff's motion to substitute Mary Lee Gill for Nancy Spaeder, named in the second amended complaint, has been rendered moot, and the Court HEREBY RECOMMENDS denial of the motion, without prejudice, on that ground.

These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Any objections must be in writing and must be filed within fifteen (15) days from the date of service of these Findings and Recommendations. The 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. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.

20100111

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