1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RODNEY ALEXANDER GRAVESBEY Case No.: 3:19-cv-00372-CAB-RBM

CDCR #E-20555,

12

ORDER:

Plaintiff, 13 v. (1) DISMISSING CASE WITHOUT 14 PREJUDICE PURSUANT TO 15 C/O TOMICA BYRD-HUNT; et al., FEDERAL RULE OF CIVIL Defendants. PROCEDURE 25(a)(1); AND 16 (2) DENYING DEFENDANT’S MOTION 17

TO DISMISS AS MOOT

18 [Doc. 37] 19 20 21 I. INTRODUCTION 22 Plaintiff Rodney Alexander Gravesbey (“Plaintiff”) was a California state prisoner 23 proceeding pro se and in forma pauperis in this civil rights action. (Docs. 3, 31.) On 24 December 26, 2019, Defendant T. Byrd-Hunt (“Defendant”) filed a Motion to Dismiss 25 Certain Claims in Plaintiff’s Second Amended Complaint (“Motion to Dismiss”). (Doc. 26 37.) During the pendency of the parties’ briefing schedule on the Motion to Dismiss, 27 Plaintiff passed away on or around February 19, 2020 at the Richard J. Donovan 28 Correctional Facility (“RJD”). (Docs. 39-43.) 1 On April 13, 2020, Defendant filed and served a Renewed Notice of Suggestion of 2 Plaintiff’s Death (“Renewed Notice”), serving Plaintiff’s next of kin and other relatives 3 pursuant to Rule 25 of the Federal Rules of Civil Procedure.1 (Doc. 43); see infra pp. 2-3. 4 This filing commenced the running of a ninety-day period for Plaintiff’s successors or 5 representatives to file a motion for substitution in this case. See FED. R. CIV. P. 25(a)(1), 6 (3). To date, Plaintiff’s next of kin and other relatives have not filed a motion to substitute 7 as Plaintiff’s successors or representatives, and the time in which to do so has now expired. 8 For the reasons outlined below, the Court DISMISSES this case in its entirety without 9 prejudice and DENIES Defendant’s Motion to Dismiss as moot. 10 II. BACKGROUND 11 Defendant admits she does not know the identity of the personal representative of 12 Plaintiff’s estate. (Doc. 43 at 1.) However, Defendant’s March 16, 2020 Notice attaches 13 several records from Plaintiff’s prison file identifying the following individuals as 14 Plaintiff’s next of kin and/or relatives: Herbert Washington (“Washington”) of Magnolia, 15 Delaware (the individual Plaintiff purportedly listed as his next of kin who should be 16 notified in the event of his death); Shelia Freeman (“Freeman”) of Baltimore, Maryland 17 (apparently Plaintiff’s sister); Neal Cassidy (“Cassidy”) of Berkeley, California 18 (relationship unknown); Desthat or Theotha Woodburn (apparently Plaintiff’s sister); 19 Desheda Brown (“Brown”) of Baltimore, Maryland (apparently Plaintiff’s sister); Robert 20 Gravesbey of Baltimore, Maryland (apparently Plaintiff’s brother); and Adjeala Gravesbey 21 of Baltimore, Maryland (apparently Plaintiff’s son).2 (Doc. 41 at 2, Exs. A-B at 4-18.) 22 23 1 On March 16, 2020, Defendant filed a Notice of Suggestion of Plaintiff’s Death (“March 16, 2020 24 Notice”) and served this Notice to several of Plaintiff’s relatives identified in Plaintiff’s prison file. (Doc. 41 at 2, Exs. A-B at 4-18, 19-20.) At that time, Defendant did not know the identity of the personal 25 representative of Plaintiff’s estate. (Id. at 1-2.) On April 8, 2020, Magistrate Judge Ruth Bermudez 26 Montenegro ordered Defendant to file a renewed statement noting Plaintiff’s death, accompanied by a sworn affidavit detailing Defendant’s good-faith efforts to identify Plaintiff’s successors or representatives 27 for purposes of effecting proper service pursuant to Rule 4 of the Federal Rules of Civil Procedure. (Doc. 42 at 4-5); see also FED. R. CIV. P. 25(a)(3). 28 2 The Renewed Notice cites Plaintiff’s prison records but does not attach the records as exhibits, therefore, 1 Defendant attempted service of the March 16, 2020 Notice to Washington, Freeman, 2 Cassidy, Brown, Robert Gravesbey, and Adjeala Gravesbey, but the Court’s April 8, 2020 3 Order found service ineffective under Rule 4 of the Federal Rules of Civil Procedure. (Doc. 4 41 at 19-20; Doc. 42 at 4.) Magistrate Judge Montenegro required Defendant to file a 5 renewed notice accompanied by a sworn affidavit detailing Defendant’s good-faith efforts 6 to identify Plaintiff’s successors or representatives for purposes of effecting proper service. 7 (Doc. 42 at 4.) Defendant served the Renewed Notice via certified mail, return receipt 8 requested, to Washington, Freeman, Cassidy, Brown, Robert Gravesbey, and Adjeala 9 Gravesbey. (Doc. 43 at 7.) 10 III. LEGAL STANDARD 11 Federal Rule of Civil Procedure 25(a) provides that if a party to a claim dies, unless 12 substitution is made within ninety days after service of a statement noting the death, the 13 action by the decedent must be dismissed. Service of a statement noting death triggers 14 commencement of a ninety-day period for substitution, which is accomplished by an 15 affirmative two-step process. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). First, 16 a party must file a statement noting death. Barlow, 39 F.3d at 233 (citation omitted); FED. 17 R. CIV. P. 25(a)(1), (3). Second, a party must serve the statement upon nonparty successors 18 or representatives in the manner provided in Rule 4 for service of summons. Barlow, 39 19 F.3d at 233 (citation omitted); FED. R. CIV. P. 25(a)(3). 20 Service of the statement noting death “may be made in any judicial district.” FED. 21 R. CIV. P. 25(a)(3). Pursuant to Rule 4(e)(1), “an individual . . . may be served in a judicial 22 district in the United States by: following state law for serving a summons in an action 23 brought in courts of general jurisdiction in the state where the district court is located or 24 where service is made[.]” Given that this Court is located in California, service is valid if 25 it complies with California law governing service of a summons. Service of summons on 26 persons outside of California may be completed “by sending a copy . . . to the person to be 27 served by first-class mail, postage prepaid, requiring a return receipt. Service . . . by this 28 form is deemed complete on the 10th day after such mailing.” Cal. Civ. Proc. Code § 1 415.40 (West 2016). If the motion for substitution is not made “within [ninety] days after 2 service of a statement nothing the death, the action by . . . the decedent must be dismissed.” 3 See FED. R. CIV. P. 25(a)(1). 4 IV. DISCUSSION 5 According to Plaintiff’s prison records, Plaintiff identified Washington as his next 6 of kin to be contacted in the event of his death. (Doc. 41 at 2, Exs. A-B at 4-18.) According 7 to the Declaration of Terrence F. Sheehy, Defendant’s counsel, Sheehy communicated with 8 Washington regarding this litigation and Plaintiff’s death wherein Washington 9 acknowledged receipt of the March 16, 2020 Notice. (Doc. 43 at 5, ¶ 3.) Sheehy inquired 10 with Washington as to Plaintiff’s other living relatives, but Washington could not produce 11 any contact information. (Id.) Although Plaintiff’s personal representative has not been 12 identified, Sheehy’s sworn affidavit demonstrates Defendant’s good-faith effort to 13 ascertain this information. (Doc. 43 at 5-6.) 14 On April 13, 2020, Defendant served the Renewed Notice upon Washington and five 15 additional relatives of Plaintiff via certified mail, return receipt requested. (Doc. 43 at 7); 16 FED. R. CIV. P. 4(e)(1); Cal. Civ. Proc. Code § 415.40. As to Washington, he acknowledged 17 receipt of the March 16, 2020 Notice and it appears service of the Renewed Notice has 18 been properly effected. (Doc. 43 at 5, 7.) Defendant’s good-faith attempt to ascertain 19 Plaintiff’s personal representatives, coupled with service of the Renewed Notice upon 20 Plaintiff’s next of kin, affirmatively discharged the two-step process to trigger 21 commencement of the ninety-day period in which to file a motion for substitution in this 22 case. FED. R. CIV. P. 25(a)(1); see also Gruenberg v. Maricopa Co. Sheriff’s Office, 2008 23 WL 2001253, at **1-2 (D. Ariz. May 7, 2008) (service on deceased pro se prisoner 24 plaintiff’s representative or successor not required where defendant made good faith effort 25 to identify such persons but was unable to do so); Lawson v. Co. of Wayne, 2012 WL 26 5258216, at **2-3 (E.D. Mich. Oct. 23, 2012) (directing defense counsel serving statement 27 noting death to make good faith effort to locate deceased pro se prisoner plaintiff’s 28 successor); Mayfield v. Maxwell, 2018 WL 3539467, at *2 (M.D. Tenn. June 23, 2018) 1 || (defendant made good faith effort to locate deceased pro se prisoner plaintiff's successors 2 ||for purposes of serving statement noting death); see also Jackson v. Rowlett, 2007 WL 3 ||397114, at *1 (E.D. Cal. Jan. 31, 2007) (ordering defendant’s counsel to make reasonable 4 || investigation to ascertain deceased defendant’s successor or representative for purposes of 5 serving suggestion of death in context where plaintiff is a pro se prisoner). 6 To date, Washington nor any other relative has filed a motion to substitute 7 themselves as Plaintiff's representative or successor, and the time in which to do so has 8 ||now expired. As such, this case must be dismissed. See FED. R. Civ. P. 25(a)(1). 9 V. CONCLUSION 10 Accordingly, the Court DISMISSES this case in its entirety without prejudice 11 pursuant to Federal Rule of Civil Procedure 25(a) and DENIES Defendant’s Motion to 12 || Dismiss (Doc. 37) as moot. The Clerk of Court is instructed to enter judgment accordingly 13 || and close the case. 14 IT IS SO ORDERED. 15 || Dated: July 23, 2020 € Z 16 Hon. Cathy Ann Bencivengo 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28