Opinion
No. CIV. S-04-1495 WBS GGH.
February 21, 2006
MEMORANDUM AND ORDER RE: MOTION TO DISMISS ACTION AS TO CLAIMANT ANDRES VALDEZ, JR.
Plaintiff moves to dismiss this action as to claimant Andres Valdez, pursuant to Federal Rule of Civil Procedure 25. No opposition has been filed.
I. Factual and Procedural Background
On January 29, 2004, as part of an investigation into the sale of methamphetamine, the Sacramento Special Weapons and Tactics team executed an arrest warrant for Orlando Flores. (Compl. ¶ 5(m).) In Flores' back pocket, the officers found $14,223 in U.S. currency. (Id.) Of that currency, the United States Drug Enforcement Agency, pursuant to 21 U.S.C. § 881(b), seized approximately $14,173 as money intended to facilitate a violation of 21 U.S.C. § 841 et seq. (Id. ¶¶ 3-4.) On July 29, 2004, the plaintiff brought this forfeiture action against the seized defendant currency in accordance with 21 U.S.C. § 881(a)(6). (Id. ¶ 5.)
Claimants Andres Valdez, Patricia Valdez, and Orlando Flores filed a verified claim of ownership contesting the forfeiture and alleging that the defendant property was not used or intended for use to facilitate a violation of 21 U.S.C. § 841 et seq. (Sept. 3, 2004 Verified Claim of Ownership ¶ 2.) Instead, the claimants contend that the currency was acquired through the refinancing of the Valdezes' home, and Orlando Flores only possessed the currency as a bailee to Andres Valdez and Patricia Valdez. (Id. ¶¶ 3-8.) On September 9, 2004, prior to adjudication, Andres Valdez was shot and killed in Sacramento, California. (Pl.'s Mot. to Dismiss Andres Valdez Ex. 2.)
Plaintiff now moves to dismiss the action as to Andres Valdez pursuant to Federal Rule of Civil Procedure Rule 25(a)(1). Plaintiff alleges that all parties and nonparty successors and representatives have been timely served with the required suggestion of death and, to date, no motion to substitute has been filed in this matter. This motion to dismiss is unopposed.
II. Discussion
Rule 25(a)(1) provides that:
If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. . . . Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of the statement of fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
In the Ninth Circuit, the 90 day period begins to run upon the completion of two tasks. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). "First, a party must formally suggest the death of the party upon 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. (citing Fed.R.Civ.P. 25(a)(1)). Specifically, the suggestion of death "shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for service of summons." Fed.R.Civ.P. 25(a)(1).
Plaintiff surmounted the first of these procedural hurdles by formally suggesting the death of Andres Valdez on the record on June 1, 2005. (Pl.'s Statement of Fact of Death.) As to the second step, plaintiff served all claimants and parties in accordance with Rule 5 by electronic service to the parties' attorney with the Statement of Fact of Death. (Pl.'s Mot. to Dismiss Andres Valdez Ex. 3); see also Fed.R.Civ.P. 5(b)(1), (2)(D). As to nonparty successors or representatives, after failing to locate a formally appointed successor or representative of Andres Valdez's estate, plaintiff served nonparty successors and representatives with the Statement of the Fact of Death by publication. (Pl.'s Mot. to Dismiss as to Andres Valdez Exs. 4, 6.)
In addition to service by publication, the deceased claimant's spouse, Regina Valdez, was personally served at her residence with the Statement of Fact of Death on June 30, 2005. (Pl.'s Mot. to Dismiss Andres Valdez Ex. 5.)
In this case, service by publication satisfies Rule 4. Rule 4(e)(1) allows service upon an individual "pursuant to the law of the state in which the district court is located. . . ." Fed.R.Civ.P. 4(e)(1). California allows service by publication when (1) the serving party satisfies the court that a claimant of personal property cannot be served in another manner through reasonable diligence and (2) service is effected as provided in California Government Code § 6064. Cal. Code Civ. Proc. § 415.50(a)(2), (b); see also Cal. Gov. Code § 6064 (requiring publication once a week for four successive weeks; notice is complete after a "notice period" of 28 days from the first publication).
Magistrate Judge Hollows was previously satisfied in this case that service by publication was proper and effective through the means employed by plaintiff. (July 18, 2005 Order for Publication.) In accordance with that order, plaintiff published its first notice of Andres Valdez's death on August 4, 2005, and every week thereafter for four weeks, in The Daily Recorder. (Pl.'s Mot. to Dismiss Andres Valdez Ex. 6.) All parties and nonparty successors and representatives were thus properly served with the Statement of the Fact of Death as of September 1, 2005.See Cal. Gov. Code § 6064. Thus, the 90 day time period during which a motion for substitution could be made began on that date. See Barlow, 39 F.3d. at 233-34 (holding that the 90 day period provided by Rule 25(a)(1) is not triggered until the appropriate representative is served a suggestion of death in a manner provided by Rule 4).
Accordingly, the filing period for a motion for substitution expired on November 30, 2005. The filing deadline has therefore passed and no motion for substitution as to the deceased party has been filed.
IT IS THEREFORE ORDERED that plaintiff's motion to dismiss the claim of Andres Valdez be, and the same hereby is, GRANTED.