De Los Reyes v. Walmart Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JENNIFER DE LOS REYES, an Case No.: 24-CV-1319 JLS (KSC) individual, 12 ORDER DISMISSING ACTION Plaintiff, 13 PURSUANT TO FEDERAL RULE vs. OF CIVIL PROCEDURE 25(a) 14 WALMART, INC., a Delaware 15 corporation; WAL-MART 16 ASSOCIATES, INC., a Delaware corporation; and DOES 1-50, inclusive, 17 Defendants. 18 19 On September 17, 2024, the Court received a Notice of Plaintiff’s Death by 20 Plaintiff’s counsel. ECF No. 9. Subsequently, on March 5, 2025, the Court issued an Order 21 requiring Defendants Walmart, Inc. and Wal-Mart Associates, Inc. (collectively, 22 “Defendants”) to provide the Court with a formal notice of Plaintiff’s death and to serve 23 that notice on Plaintiff’s representative or successor. ECF No. 11 (“Order”). 24 As explained in the Order, Federal Rule of Civil Procedure 25 establishes the process 25 for moving forward after a party to a civil action has died. Of relevance here, it provides 26 that “[i]f a party dies and the claim is not extinguished, the court may order substitution of 27 the proper party.” Fed. R. Civ. P. 25(a). If the decedent’s successor or representative does 28 not file a motion for substitution “within 90 days after service of a statement noting the 1 death, the action by or against the decedent must be dismissed.” Id. The Ninth Circuit has 2 explained that Rule 25 requires two affirmative steps to trigger the 90-day period: 3 First, a party must formally suggest the death of the party upon the record . . . . Second, the suggesting party must serve 4 other parties and nonparty successors or representatives of the 5 deceased with a suggestion of death in the same manner as required for service of the motion to substitute . . . . Thus, a party 6 may be served the suggestion of death by service on his or her 7 attorney, . . . while non-party successors or representatives of the deceased party must be served the suggestion of death in the 8 manner provided by Rule 4 for the service of a summons. 9 10 Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994) (internal citations omitted). 11 Under Barlow, the defendant has some obligation to identify the plaintiff’s representative 12 or successor and to serve the notice of death on that party. See Gilmore v. Lockard, 13 936 F.3d 857, 865–68 (9th Cir. 2019). 14 On March 27, 2025, Defendants filed a Notice of Plaintiff’s Death; Plaintiff’s Next 15 of Kin and/or Successors Requirement to Appear (“Notice,” ECF No. 13). In such Notice, 16 Defendants detailed their efforts to locate a next of kin or successor, to no avail. Notice at 17 2–3. Consequently, Defendants requested that the 90-day period set forth in Federal Rule 18 of Civil Procedure 25(a)(1) “be triggered by this Notice served upon the last known address 19 of Plaintiff and last known business, pursuant to Federal Rule of Civil Procedure 4, in an 20 effort to locate a next of kin or successor.” Id. at 3. 21 On April 1, 2025, the Court granted Defendants’ request, finding Defendants’ Notice 22 was sufficient to trigger the 90-day period set forth in Rule 25(a)(1). ECF No. 14 (“Order”) 23 at 4. The Court emphasized that if a “motion for substitution is not made within 90 days 24 after service of Defendants’ Notice (ECF No. 13), the action by Jennifer De Los Reyes 25 will be dismissed by the Court.” Order at 4 (emphasis in original). 26 Because 90 days have now come and gone since Defendants noticed the Court of 27 Plaintiff’s death, and because Plaintiff died approximately 10 months ago and there has 28 been no inquiry into the case by a potential successor, the Court will DISMISS this action 1 |}under Rule 25(a). However, such dismissal shall be WITHOUT PREJUDICE. See 2 || Gruenberg v. Maricopa Cnty. Sheriff's Off, No. CV 06-0397-PHX-SMM (DKD), 2008 3 || WL 2001253, at *1—2 (D. Ariz. May 7, 2008) (“[G]iven the circumstances, which include 4 ||the inability to locate a representative and the lack of an adjudication on the merits, the 5 dismissal [pursuant to Rule 25(a)] will be without prejudice.”). As this concludes the 6 || litigation in this matter the Clerk of Court shall CLOSE the file. 7 IT IS SO ORDERED. 8 Dated: July 9, 2025 tt f Le 9 on. Janis L. Sammartino 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28