The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION GRANTING PLAINTIFFS' MOTION FOR SUBSTITUTION OF MARIA P. MACHADO AS PLAINTIFF
On February 24, 2010, Douglas Applegate, counsel for Plaintiffs, filed a motion on behalf of Maria Machado for substitution of Maria P. Machado, individually, as Trustee of The Machado Family Trust as a Plaintiff pursuant to Rule 25(a)(1), Federal Rules of Civil Procedure:
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.
The motion is supported by the Declaration of Maria P. Machado, 2 executed on February 24, 2010:
2. Plaintiff Alvaro C. Machado commenced this action, individually as a named plaintiff in the original complaint filed in this action on September 11, 2006 and the subsequently filed First Amended Complaint and Second Amended Complaint filed on June 22, 2007 and April 2, 2008, respectively.
3. On November 5, 2008, plaintiff Alvaro C. Machado died....
4. No proceeding is now pending in California for administration of the decedent's estate.
5. Prior to his death, Mr. Machado assigned all of his assets including his dairy farm business and its related assets that are the subject of this lawsuit to the Trust known as The Machado Family Trust executed on February 10, 1993, by Alvaro C. Machado and Maria P. Machado as Settlors.
6. Upon Mr. Machado's death, I became the sole successor trustee of the The [sic] Machado Family Trust... A true and correct copy of the Affidavit of Successor Trustee recorded with Sacramento County Recorders office [on January 27, 2010] is attached to this declaration as Exhibit B.
7. As the sole trustee of the The [sic] Machado Family Trust I am decedent's successor in interest, as defined in Rule 25(a)(1)... and succeeded to the decedent's interest in the action.
8. Thus, because the dairy business and the associated assets that are the subject of this action are assets of The Machado Family Trust, I am the proper party for substitution as the sole remaining trustee of the Trust.
9. No other person has a superior right to be substituted for the decedent in the pending action.
Defendant Downey Brand opposes this motion on the ground that it is untimely.
The Statement of Fact of Death of Plaintiff Alvaro Machado (the "Statement") was filed by Plaintiffs Manuel Lopes, Mariana Lopes, Raymond Lopes, the Lopes Dairy, Joseph Lopes, Michael Lopes, Westside Holstein, and Tony Estevam on November 23, 2009. (Doc. 174). Ms. Machado was not then a party to the action. The Statement was served on "Mary Machado" on November 23, 2009.
Downey Brand personally served Ms. Machado with the Statement on November 25, 2009. (Doc. 180). Downey Brand contends that the 90-day period ran on February 22, 2010. The motion for substitution was filed on February 24, 2010 at 6:35 p.m. Downey Brand refers to the Court's Standing Order in All Civil Cases Assigned to U.S. District Judge Oliver W. Wanger, (Doc. 5): "2. Law and motion pleadings must be electronically filed by the close of business on the day the filing is due." Therefore, Downey Brand contends, because the motion for substitution was filed after the close of business on February 24, 2010, the motion was actually filed on February 25, 2010.
Downey Brand further asserts that even if the 90-day period runs from the date of personal service on Ms. Machado, that period expired on February 23, 2010.
Plaintiffs respond that the motion for substitution is timely. They point to Rule 25(a)(3), ...