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Nancy Schwartz On Behalf of Herself v. Lassen County Ex Rel. the Lassen County Jail (Detention Facility) Et

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 7, 2011

NANCY SCHWARTZ ON BEHALF OF HERSELF INDIVIDUALLY AS THE MOTHER OF MICHAEL PARKER, DECEASED; AND NANCY SCHWARTZ AS REPRESENTATIVE AND ADMINISTRATOR OF MICHAEL PARKER'S ESTATE, PLAINTIFF,
v.
LASSEN COUNTY EX REL. THE LASSEN COUNTY JAIL (DETENTION FACILITY) ET AL., DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Plaintiff Nancy Schwartz, on behalf of herself and her son, decedent Michael Parker ("Plaintiff"), brings suit against Lassen County Detention Facility, Steven W. Warren, Sheriff of Lassen County, and others (collectively, "Defendants") for violations of federal and state law relating to her son's in-custody death.

Defendants Lassen County and Steven W. Warren, Sheriff of Lassen County have filed a Motion to Dismiss Plaintiff's First Amended Complaint*fn1 for failure to state a claim for relief pursuant to Federal Rule of Civil Procedure Rule 12(b)(6).

As a threshold matter, jurisdiction is not proper in the instant case. Pursuant to California Code of Civil Procedure § 377.32, any person "who seeks to commence an action or proceeding as the decedent's successor in interest" must execute an 9 affidavit declaring, among other things, that the "declarant is authorized to act on behalf of the decedent's successor in interest." Id. § 377.32(B). Plaintiff failed to file such an affidavit, and she has not provided the Court with the decedent's death certificate in compliance with the statute. Id. § 377.32(c).

Therefore, the First Amended Complaint is dismissed without prejudice. Defendants' Motion to Dismiss (ECF No. 13) is denied as moot. Plaintiff may file the appropriate documents in compliance with California Code of Civil Procedure § 377.32 by April 8, 2011. If no documents are filed by said date, the Clerk is ordered to close the case without further notice to the parties.

IT IS SO ORDERED.


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