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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

MIHAITA CONSTANTIN,

CASE NO. CIV 04-1247 WBS

Plaintiff,

v. ORDER 

 

COUNTY OF SACRAMENTO;

SACRAMENTO COUNTY SHERIFF’S 

DEPARTMENT; SHERIFF LOU

BLANAS, individually and in 

official capacity as Sheriff

of the Sacramento County

Sheriff’s Department; DEPUTY

C. MASON; DEPUTY PARKER;

DEPUTY MORCK; DEPUTY PAI;

DEPUTY DE LA CRUS; DOES I

through XXX, inclusive,

Defendants.

----oo0oo----

Presently before the court is defendants’ motion for 

summary judgment pursuant to Federal Rules of Civil Procedure 56

and 25. No opposition has been filed.

I. Factual and Procedural Background

On or about July 13, 2003, plaintiff was arrested by

the California Highway Patrol and placed into a holding cell at

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the Sacramento Main Jail at 541 “I” Street in Sacramento,

California. (Compl. ¶ 13.) While in custody, plaintiff was

allegedly assaulted without provocation by officers of the

Sacramento County Sheriff’s Department. (Id. ¶ 14.) On June 29,

2004, plaintiff filed a complaint alleging various constitutional

violations under 42 U.S.C. § 1983 and the following state law

claims: negligent hiring, training, supervision and retention;

negligence; assault; battery; conspiracy; and negligent and

intentional infliction of emotional distress. (Compl.) 

Plaintiff sought compensatory, general, special, punitive, and

exemplary damages against each defendant. (Id. at 11 (prayer for

relief).) 

Plaintiff died in a car accident on May 14, 2005. 

(Aug. 26, 2005 Statement of Fact of Death of Pl.) Plaintiff’s

attorney filed a statement of fact of death of plaintiff,

pursuant to Federal Rule of Civil Procedure 25, stating only that

plaintiff is deceased, on August 26, 2005. (Id.) Later, on

December 6, 2005, defendants filed a supplemental statement of

fact of death of plaintiff and request for judicial notice,

attaching a copy of the death certificate of Mihaita Constantin

and noting that the court has appointed Lucian Stanciu special

administrator of decedent’s estate. (December 6, 2005 Supp.

Statement of Fact of Death of Pl. and Request for Judicial

Notice.)

///

///

///

///

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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.

Fed. R. Civ. P. 25(a)(1). Further, Rule 25 specifies that a

motion for substitution may be made by any party or by the

successors or representatives of the deceased party. Id. 

Plaintiff’s former attorney’s filing of August 26, 2005

cannot be a “suggestion of death” that would trigger the 90-day

limitation on filing a motion for substitution, because it was

not filed by a party or by a successor or representative for the

deceased party. See Fehrenbacher v. Quackenbush, 759 F. Supp.

1516, 1518 (D. Kan. 1991) (quoting Charles A. Wright et al.,

Federal Practice and Procedure § 1955 at 545 (2d ed. 1986)) (“The

attorney for the deceased party may not make the suggestion of

death since he is not himself a party to the action and, since

his authority to represent the deceased terminated on the death,

he is not a ‘representative of the deceased party’ of the sort

contemplated by the rule.”); Rende v. Kay, 415 F.2d 983, 985

(D.C. Cir. 1969) (holding that “[a]lthough the attorney for the

defendant was retained to ‘represent’ the deceased as his

counsel, he is not a person who could be made a party, and is not

a ‘representative of the deceased party’ in the sense

contemplated by Rule 25(a)(1)”). 

///

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The court recognizes that Fed. R. Civ. P. 6(b) would 1

authorize it to extend the time in which to file a motion for

substitution either before or after the expiration of the ninetyday period. See Dukens Kernisant v. City of New York, 225 F.R.D.

422, 427 (E.D.N.Y. 2005) (citing Charles A. Wright et al.,

Federal Practice and Procedure § 1955 at 546 (2d ed. 1986)); see

also Kaubisch v. Weber, 408 F.3d 540, 541 (8th Cir. 2005). 

However, no application for such an extension has been made, and

in light of plaintiff’s counsel’s apparent lack of interest in

proceeding with this case the court sees no valid reason to enter

such an order sua sponte. 

Defendants’ alternative motion for partial summary 2

judgment on the state law claims and the claims for pain and

suffering and punitive damages need not be considered because it

is rendered moot by this order.

4

However, defendants’ subsequent filing of December 6,

2005 did start the 90-day period running because it was filed by

a party. The 90-days from that date have now expired, and no

motion for substitution has been filed. 

1

IT IS THEREFORE ORDERED that this action be, and the

same hereby is, DISMISSED.2

DATED: March 18, 2006

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