1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

UNITED STATES OF AMERICA,

NO. CIV. S-04-1495 WBS GGH

Plaintiff,

v. MEMORANDUM AND ORDER RE: 

MOTION TO DISMISS ACTION AS TO

CLAIMANT ANDRES VALDEZ, JR.

APPROXIMATELY $14,173.00 IN

U.S. CURRENCY,

Defendant.

----oo0oo----

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),

Case 2:04-cv-01495-WBS-GGH Document 30 Filed 02/21/06 Page 1 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

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 

Case 2:04-cv-01495-WBS-GGH Document 30 Filed 02/21/06 Page 2 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

shall be dismissed as to the deceased party.

Fed. R. Civ. P. 25(a)(1).

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

Case 2:04-cv-01495-WBS-GGH Document 30 Filed 02/21/06 Page 3 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

In addition to service by publication, the deceased 1

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.)

4

Fact of Death by publication. (Pl.’s Mot. to Dismiss as to 1

Andres Valdez Exs. 4, 6.) 

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. 

Case 2:04-cv-01495-WBS-GGH Document 30 Filed 02/21/06 Page 4 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

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. 

DATED: February 17, 2006

Case 2:04-cv-01495-WBS-GGH Document 30 Filed 02/21/06 Page 5 of 5