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1 All references to "Rules" are to the Federal Rules of

Civil Procedure. 

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

Attorneys for Plaintiff

United States of America

IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

APPROXIMATELY $14,173.00 IN U.S.

CURRENCY,

Defendant.

2:04-CV-1495 WBS/GGH

PLAINTIFF'S APPLICATION AND

ORDER FOR PUBLICATION

DATE: N/A

TIME: N/A

COURTROOM: N/A 

The United States of America, plaintiff herein, applies for

an order of publication as follows:

1. Claimant Andres Valdez died on September 9, 2004. In

accordance with Fed.R.Civ.P. 25(a)(1) plaintiff filed a Statement

of Fact of Death on June 1, 2005.

2. Under Rule 25 1 Plaintiff is required to serve the

Statement of Fact of Death (hereafter "the Statement") on Valdez'

successor or representative "in the manner provided in Rule 4 for

the service of a summons. . . ."

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3. Rule 4 provides for two methods of service of a summons

on an individual: (1) by delivering a copy of the summons to the

person's dwelling house [Rule 4(e)(2)] or (2) "pursuant to the

law of the state in which the district court is located ...for

the service of a summons upon the defendant in an action brought

in the courts of general jurisdiction of the State[.]" Rule

4(e)(1).

4. Plaintiff has made diligent efforts to identify and

personally serve Valdez' personal representative or successor

with the Statement in accordance with Rule 4(e)(2). Plaintiff

served Valdez' wife with the Statement on June 30, 2005, but

plaintiff does not know if she is, in fact, Valdez' personal

representative or successor. See the Declarations of Kristin S.

Door and Marwa Hassoun in Support of Application and Order for

Publication.

5. For these reasons, plaintiff seeks an order permitting

service of the Statement under the second option permitted in

Rule 4(e)(1), i.e, by any method permitted under state law. 

6. California Code of Civil Procedure § 415.50 permits

service of a summons by publication as provided in Government

Code § 6064 upon a showing that the party to be served cannot

"with reasonable diligence be served in another manner. . ." The

publication is to be "in a named newspaper, published in this

state, that is most likely to give actual notice to the party to

be served." CCP § 415.50(b).

7. Local Rule 83-171, Eastern District of California,

provides that the Court shall designate by order the appropriate

newspaper for publication. 

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8. Government Code § 6064 provides that "publication of

notice pursuant to this section shall be once a week for four

successive weeks."

9. As shown in the declarations of Kristin S. Door and

Marwa Hassoun, plaintiff has exercised reasonable diligence to

identify and serve Valdez' personal representative or successor

but has been unsuccessful.

10. Plaintiff proposes that publication be made as follows:

a. Once a week for four consecutive weeks;

b. In the following newspaper, a legal newspaper of

general circulation, located in the county where claimant died

(Sacramento County), where he resided at the time of his death,

and where it is likely to give actual notice to claimant's

personal representative or successor: the Daily Recorder.

c. The publication to include:

(1) The Court, title, and number of the action.

(2) The name, address, and telephone number of the

plaintiff's attorney.

(3) The identity and description of the defendant

property.

(4) A statement that Andres Valdez died on September

9, 2004 in Sacramento County. 

(5) A statement that Andres Valdez has filed a claim

to the defendant property.

(6) A statement that any person who claims to be

Andres Valdez' successor or representative must file a motion for

substitution as the proper party in this action and serve it on

the plaintiff's attorney within 90 days after the last date of

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publication; 

(7) A statement that if no motion for substitution is

filed, claimant Andres Valdez may be dismissed as a party to this

action, and all right, title, and interest of Andres Valdez in

the defendant currency will be extinguished. 

DATED: July 7, 2005 McGREGOR W. SCOTT

United States Attorney

/s/Kristin S. Door

By: 

KRISTIN S. DOOR

Assistant U.S. Attorney

ORDER

IT IS SO ORDERED.

DATE: 7/18/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

United States Magistrate Judge

$14,173.ord07

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