Bossart v. Kijakazi
- Proceeding
- district
- Area
- civil
- Panel
- Jinsook Ohta (author)
Analysis
The court considered a motion by Jane Bossart to substitute as the real party in interest following the death of the original plaintiff, Judith Frary, in a Social Security appeal. The court granted the motion, finding that the requirements of Federal Rule of Civil Procedure 25 were met.
| What the court decided | The model |
|---|---|
Motion to Substitute Party granted“Accordingly, because the requirements of Rule 25 are met, the Court GRANTS the motion [Dkt. 5].” | agree with court The court correctly applied Federal Rule of Civil Procedure 25(a)(1). The record indicates that notice of death was served within the 90-day window, the motion was filed by a successor/representative (supported by declarations from other siblings), and the defendant did not oppose the substitution. The citation to *Barlow v. Ground* supports the procedural requirement of formally suggesting death on the record, which the court found was satisfied. |
The order itself: sound — The order is procedurally sound. It identifies the relevant rule (Rule 25), cites binding Ninth Circuit authority regarding the procedural steps for suggesting death (*Barlow*), and confirms that the factual prerequisites (timeliness, proper movant, lack of opposition) were met based on the cited docket entries. There are no gaps in the reasoning for this specific procedural motion.
Opinion
1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 JUDITH LEE FRARY, Case No.: 22cv1183-JO-MDD 13 Plaintiff, ORDER GRANTING MOTION TO 14 v. SUBSTITUTE PARTY 15 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 16 Defendant. 17 18 Plaintiff Judith Frary filed this social security appeal on August 12, 2022. Dkt. 1. 19 After Plaintiff Frary died, her sister Jane Bossart filed a motion to substitute Plaintiff as the 20 real party in interest under Federal Rule of Civil Procedure 25. Dkt. 5. Rule 25 provides 21 that after the death of a party, the deceased party’s successor or representative may move 22 to substitute as the proper party by filing a motion within 90 days of serving notice of the 23 party’s death. See Fed. R. Civ. P. 25(a)(1). Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 24 1994) (first, “a party must formally suggest the death of the party upon the record” and 25 then, “the suggesting party must serve other parties . . . with a suggestion of death in the 26 same manner as required for service of the motion to substitute.”). Here, Ms. Bossart filed 27 and served notice of Plaintiff’s death within 90 days and requested to substitute the 28 1 deceased Plaintiff as the real party in interest. See Dkt. 5. Ms. Bossart submitted the 2 declarations of Plaintiff’s other surviving siblings designating Ms. Bossart as the 3 representative in this matter. See Dkt. 13. Defendant did not oppose the motion. See Dkt. 4 12. Accordingly, because the requirements of Rule 25 are met, the Court GRANTS the 5 motion [Dkt. 5]. 6 IT IS SO ORDERED. 7 Dated: October 24, 2022 8 9 ____________________ Hon. Jinsook Ohta 10 United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28