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

McGREGOR W. SCOTT

United States Attorney

KRISTIN S. DOOR SBN 84307

Assistant U.S. Attorney

501 I Street, Suite 10-100

Sacramento, CA 95814

Telephone: (916) 554-2723

IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, ) 2:04-CV-1495 WBS/GGH

) EX PARTE APPLICATION TO

Plaintiff, ) MODIFY THE STATUS (PRETRIAL

) SCHEDULING) ORDER AND

v. ) ORDER THEREON

) [Proposed]

APPROXIMATELY $14,173.00 IN )

U.S. CURRENCY, ) DATE: N/A

) TIME: N/A

Defendant. ) COURTROOM:N/A

______________________________)

Plaintiff United States of America submits this ex parte

application to modify the March 29, 2005, Status (Pretrial

Scheduling) Order. Good cause exists for the modification, as

set forth below.

1. Three individuals (Andres Valdez, Patricia Valdez, and

Orlando Flores) filed claims to the defendant currency.

2. Claimant Andres Valdez died on September 9, 2004.

3. On June 1, 2005, plaintiff filed a Statement of Fact of

Death ("Statement") with respect to claimant Andres Valdez in

accordance with Fed. R. Civ. P. 25(a)(1). Under Rule 25 the

Statement is to be served on the decedent's successor or

representative in the same manner as for the service of a summons

Case 2:04-cv-01495-WBS-GGH Document 25 Filed 09/09/05 Page 1 of 4
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

under Fed. R. Civ. P. 4. 

4. Under Rule 25(a)(1), a successor or representative of a

deceased party has 90 days from the date of service of the

Statement to move for substitution as the proper party. 

5. Under Rule 25(a)(1), if no one moves to substitute into

this case as Andres Valdez' successor or representative, "the

action shall be dismissed as to the deceased party."

6. Accordingly, on June 30, 2005, the Statement of Fact of

Death was served on Regina Valdez, the person identified on

Andres Valdez' death certificate as his wife.

7. Thereafter, Ms. Valdez contacted undersigned counsel

and informed counsel that she and Andres Valdez had never

married.

8. Plaintiff then sought, and obtained, an order

permitting service of the Statement by publication in a manner

authorized by California Code of Civil Procedure 415.50. That

order, signed on July 18, 2005, by Magistrate Judge Gregory G.

Hollows, authorizes the plaintiff to publish the Statement and

information about the deadline for decedent's successor or

representative to substitute in as a claimant in this case. The

Statement and information is to be published once a week for four

consecutive weeks.

9. On July 22, 2005 plaintiff requested the U.S. Marshal

to take the necessary steps to publish the Statement in

accordance with Magistrate Judge Hollows' order.

10. Plaintiff has not yet received a proof of publication

and therefore does not know the dates of publication. However,

plaintiff believes that any person who claims to be Andres

Case 2:04-cv-01495-WBS-GGH Document 25 Filed 09/09/05 Page 2 of 4
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

Valdez' successor or representative will have 90 days from the

date of last publication to file a motion to substitute into this

action.

11. Claimants Patricia Valdez and Orlando Flores withdrew

their claims on August 15, 2005. Accordingly, the only possible

claimant in this case is now Andres Valdez' representative or

successor, if any.

12. Under the current Status (Pretrial Scheduling) Order

all discovery is to be completed by September 15, 2005; all

motions are to be filed on or before October 17, 2005; the Final

Pretrial Conference is January 17, 2006; and trial is set for

March 21, 2006. 

13. Since there is currently no living claimant in this

case, plaintiff requests that all dates under the scheduling

order be vacated, and that a status conference be scheduled

approximately 120 days from now. If any person has moved to

substitute into this action, the case can be rescheduled at that

time. If no one has moved to substitute in, plaintiff will move

for dismissal of Andres Valdez' claim.

Dated: September 7, 2005 McGREGOR W. SCOTT

United States Attorney

/s/ 

KRISTIN S. DOOR

Assistant U.S. Attorney

Attorneys for plaintiff United

States of America

Case 2:04-cv-01495-WBS-GGH Document 25 Filed 09/09/05 Page 3 of 4
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

4

ORDER

Good cause having been shown, all dates in the Status

(Pretrial Scheduling) order are hereby vacated, and a status

conference is scheduled for January 17, 2006 at 9:00 a.m.

DATED: September 9, 2005

Case 2:04-cv-01495-WBS-GGH Document 25 Filed 09/09/05 Page 4 of 4