United States District Court, W.D. Washington, Tacoma
AMENDED ORDER DENYING PLAINTIFF'S MOTION
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE.
District Court has referred this 42 U.S.C. § 1983 civil
rights action to United States Magistrate Judge J. Richard
Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B),
and local Magistrate Judge Rules MJR1, MJR3 and MJR4.
Asher James Becker challenges the validity of the service of
a certificate of death, asking that the Court strike the
certificate and require defendants to produce a name and
address for the decedent's successor. Dkt. 95. After the
death of defendant Joseph Williamson, the remaining
defendants filed a certificate of death with this Court. Dkt.
90. However, defendants did not include proof they had served
defendant Williamson's successor with a certificate of
death, nor did they include the successors name or address.
Id. Defendants later located Williamson's wife
and successor and served her with the certificate of death,
complaint, and discovery documents. Dkt. 103. Upon receiving
notice that defendants had located and served
Williamson's successor, plaintiff filed a response,
reiterating his objection. Dkt. 121. The Court finds that
there is no requirement that a certificate of death include
the name of the decedent's successor. Therefore, the
Court denies plaintiff's motion.
Certificate of Death
argues that the certificate of death is defective because
defendants failed to include the name of Williamson's
successor or proof that she was served. If a party dies and
the claim is not extinguished, “the court may order
substitution of the proper party.” Fed. R. Civ. Proc.
25. Either a party or the decedent's successor may file a
motion for substitution “within 90 days after service
of a statement noting the death . . . .” Id.
The rule requires a party or successor to take “two
affirmative steps in order to trigger the running of the 90
day period.” Barlow v. Ground, 39 F.3d 231,
233 (9th Cir. 1994). “First, a party must
formally suggest the death of the party upon the
record.” Id. (citations omitted).
“Second, the suggesting party must serve other parties
and nonparty successors or representatives of the deceased
with a suggestion of death in the same manner as required for
service of the motion to substitute.” Id.
(citation omitted). The rule does not explicitly require the
suggestion of death to contain the name of the successor.
See Fed. R. Civ. Proc. 25. Further, because neither
the U.S. Supreme Court nor the Ninth Circuit Court of Appeals
has determined whether the rule implicitly requires a name,
different districts have imposed different naming
requirements. See, e.g., Gravelle v.
Kiander, 2016 WL 194741 at *1 (W.D. Wash. 2016)
(accepting a certificate of death without successor's
name, but requiring proof of service on successor);
Dummar v. Lummis, 2007 WL 4623623 at *3 (D. Nev.
2007) (requiring a certificate of death identify a
the certificate of death is valid. As noted above, a
certificate of death becomes effective when it has been filed
with the court and both the parties and the non-party
successor to the decedent have been served. Barlow,
39 F.3d at 233. Defendants filed the certificate of death on
April 25, 2017. Dkt. 90. On that same day, Defendants
certified they had also served plaintiff with the
certificate. Id. Defendants finally served
Williamson's wife and successor the certificate on July
24, 2017. Dkt. 103. At that point, defendants completed the
two steps Barlow requires and the certificate of
death became effective. The parties thus have 90 days from
July 24 to file a motion for substitution.
claims that the certificate is nonetheless invalid because it
does not name Williamson's successor. As noted above,
Rule 25 has no explicit requirement that a certificate name
the successor. Rather, it requires that the successor be
identified and served with the certificate. Because neither
the Supreme Court nor the Ninth Circuit have imposed a naming
requirement, and because defendants successfully served
Williamson's successor, plaintiff's argument fails.
also asks the Court to deem “all admissions sent to
Williamson as admitted, and [to] direct the defendants to
immediately produce the Williamson interrogatories and
request for production.” Dkt. 95 at 4. He further asks
the Court to extend time for discovery pertaining to
Williamson. However, it appears that the parties are still
conferring on discovery surrounding Williamson and his
successor. They conferred via telephone on June 30, 2017
(Dkt. 98) and again on July 24, 2017 (Dkt. 121). Because it
appears the parties are still conferring, the Court declines
to take action until the parties determine they cannot reach
the Court declines to extend the time for discovery. As
plaintiff has noted, the Court has warned that
“additional requests to extend will not be viewed
favorably” in this case. Dkt. 62 at 3. As noted above,
plaintiff is still in negotiations with defendants about
Williamson and his discovery. Because of this, plaintiff has
not shown good cause why the Court should amend its
scheduling order. The Court declines to allow additional time
Address of Successor
finally requests that the Court require defendants either
handle service of a substitution motion for Williamson's
successor or that the Court order defendants to provide the
successor's address. However, this motion is premature
because no motion for substitution has been filed. The Court
will consider the issue of service of a motion when, and if,
a party files such a motion.
it is ORDERED:
motion regarding Williamson discovery is denied without
prejudice. All other motions, including requests made in