IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 21, 2012
NICK TERRY, PLAINTIFF,
MATTHEW CATE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Pursuant to the Order, filed on November 4, 2011, a Notice of Suggestion of Death of a Party, was filed by the state Office of the Attorney General on December 1, 2011, indicating that plaintiff had passed away on March 24, 2011. By Order, filed on December 9, 2011, pursuant to Fed. R. Civ. P. 25(a)(1), the court ordered that a motion for substitution of a proper party in place of plaintiff must be made no later that ninety days after his death had been suggested upon the record, or, by no later than February 29, 2012, in the absence of which the court would order the action dismissed.*fn1 The order was served upon the individuals plaintiff had identified as his next of kin, an aunt and uncle, who had indicated to the Attorney General's Office, by way of Deputy Attorney General Ellen Hung, that plaintiff had no will, trust, successor or representative and that they had no wish to pursue the litigation.
The time for filing a motion for substitution of a proper party has expired and no such motion, or any other response to the order, has been filed.
Accordingly, IT IS ORDERED that:
1. Pursuant to Fed. R. Civ. P. 25(a)(1), this action dismissed;
2. The Clerk of the Court is directed to serve a copy of this order by U.S. mail upon Donald Terry and Sue Terry at 1403 S. 13th Street, Rogers, AR 72758;
3. In light of plaintiff's death, the Clerk of the Court is directed not to serve a copy of this order at plaintiff's last address of record.