Opinion
Case No. CV 04-08448 DDP (SHx)
06-20-2014
S.A. THOMAS, Plaintiff, v. LEROY BACA, et al. Defendants.
ORDER DENYING EX PARTE
APPLICATION TO SUBSTITUTE
PLAINTIFF
[Dkt. No. 970]
Presently before the court is Plaintiffs' Ex Parte Application to substitute Dwain Gipson ("Dwain") for his deceased brother, Plaintiff Eric L. Gipson. I. INTRODUCTION
Plaintiff Eric L. Gipson ("Gipson") passed away on June 13, 2014, less than two weeks before the scheduled trial date. His brother, Dwain, now seeks to substitute in as a plaintiff under Federal Rule of Civil Procedure 25(a). Defendant opposes the substitution and contends that Dwain lacks standing. II. DISCUSSION
A. Substitution of Parties under FRCP 25
Under Federal Rule of Civil Procedure 25, "[i]f 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." Fed. R. Civ. P. 25(a)(1).
Rule 25 is a procedural rule, and controls the manner of effecting substitution in federal courts. In re Baycol Products Litigation, 616 F.3d. 778, 788 (8th Cir. 2010). "The question of who is a proper party," however, is a substantive issue, on which the court must look to state law. Id.; Fox v. County of Tulare, No. 11-cv-520 AWI, 2014 WL 897040 *6 (E.D. Cal. Mar. , 2014).
Rule 25(a) should be applied flexibly and liberally to substitute parties who would best represent the decedent's interests. Baycol, 616 F.3d at 789. Nevertheless, "the party seeking to bring a survival action under Section 1983 bears the burden of demonstrating that a particular state's law authorizes a survival action and that the plaintiff meets that state's requirements for bringing a survival action." Moreland v. Las Vegas Metropolitan Police Dept., 159 F.3d 365, 369 (9th Cir. 1998); 42 U.S.C. § 1988(a).
B. California Survivorship Law
1. Gipson's Claim Is Not Extinguished
Here, Defendant does not dispute that under California law, Gipson's Section 1983 claim survives his death.
2. Whether Dwain Is A "Proper Party"
In California, a survival claim "passes to the decedent's successor in interest, subject to . . . the Probate Code, and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest." Cal. Code Civ. P. §377.30.
i. Whether Dwain Is Gipson's "Personal Representative"
Under the California Probate Code, "'personal representative' means executor, administrator, successor personal representative . . . or a person who performs substantially the same function under the law of another jurisdiction . . . ." Cal. Prob. Code § 58. Here, Plaintiffs do not assert that Dwain is the executor of Gipson's estate or performs other functions that would qualify him as a "personal representative." Even if Dwain had made such a claim, a person has no power to administer a decedent's estate until appointed by the court as personal representative. Cal. Prob. Code § 8400(b).
Prior to court appointment, even a named executor's power is limited to measures necessary to maintain and preserve the estate. Cal. Prob. Code § 8400(b).
ii. Whether Dwain is Gipson's "Successor in Interest"
"'[D]ecedent's successor in interest' means the beneficiary of the decedent's estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action." Cal. Code Civ. P. § 377.11. A "beneficiary of the decedent's estate" means a beneficiary named in a decedent's will or a beneficiary under California's rules of intestacy. Cal.Civ.P. Code § 377.10.
Here, though the ex parte application refers to Dwain as a "successor," there is no indication that he was named as a beneficiary in Gipson's will. It is unclear whether Gipson died intestate. Gipson's deposition testimony suggests that Gipson has two children, a surviving parent, and at least one other sibling apart from Dwain. (Declaration of Justin W. Clark, Ex. A.) Thus, under California's law of intestate succession, it does not appear that Dwain is Gipson's successor in interest. See Cal. Prob. Code § 6402. III. CONCLUSION
Because Dwain has not established that he is either Gipson's personal representative or successor in interest, Plaintiffs have not carried their burden to show that Dwain is a "proper party" for purposes of substitution under FRCP 25(a). The ex parte application is, therefore, DENIED. IT IS SO ORDERED.
Rule 25(a)(1) also states that claims must be dismissed if a motion for substitution is not filed within 90 days of a statement noting the Plaintiff's death. Defendant appears to suggest that a motion for substitution cannot be filed until the ninety day period begins. Having denied the ex parte application, the court does not address this additional argument, which, in any event, has not been fully developed by the parties.
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DEAN D. PREGERSON
United States District Judge