Franklin v. McDonough
- Virginia Demarchi
- 5:21-cv-06328
- U.S. District Court · Northern District of California
- 2
In Franklin v. McDonough, Judge Demarchi vacated the dismissal, reopened and stayed the case, and set steps for possible substitution after Franklin’s reported death.
The order affects David M. Franklin’s case, any successor or representative who may seek substitution, and Denis McDonough. It also directs notices to Bonnie Burton, Nathan A. Franklin, and Yndra E. Medina.
What happened
In Franklin v. McDonough, the court had dismissed David M. Franklin’s case without prejudice because he failed to move it forward. After that dismissal, Denis McDonough reported that an internet search indicated Franklin likely died on February 27, 2022.
The court said it was unclear whether a proper successor or estate representative had been served with the death notice. It vacated the June 21 dismissal, directed the clerk to reopen the case, removed existing deadlines and appearances from the calendar, and stayed the case while an appropriate successor or representative could be identified and possibly substituted.
Judge Virginia K. Demarchi ordered the defendant to file a status report by September 30, 2022, if no successor or representative appeared. The court did not decide which, if any, of Franklin’s claims survived his death.
The detailed version
- Franklin v. McDonough · No. 5:21-cv-06328
- Virginia Demarchi
- June 27, 2022
Background
On June 21, 2022, the court dismissed David M. Franklin’s action without prejudice for failure to prosecute after a hearing on an order requiring him to explain why the case should not be dismissed. Franklin represented himself.
On June 22, 2022, McDonough filed a “Notice of Apparent Death of Plaintiff.” McDonough stated that he learned through an internet search that Franklin likely had died on February 27, 2022. McDonough said Franklin’s Veterans Affairs personnel record listed Bonnie Burton as Franklin’s nearest relative, Nathan A. Franklin as his son, and Yndra E. Medina as his friend. McDonough mailed the notice to those three people and to Franklin’s address of record.
Substitution Procedure
Federal Rule of Civil Procedure 25 allows a court to substitute a proper successor or representative when a party dies and the claim is not extinguished. A substitution motion may be filed by a party or by the deceased person’s successor or representative. The 90-day period for seeking substitution begins only after the death is formally placed on the record and the notice is properly served on the other parties and on any nonparty successors or representatives. Nonparty successors or representatives must be served in the manner required for serving a summons.
The court found it unclear whether any successor or representative of Franklin had been properly served with the notice of death.
Ruling and Case Status
The court vacated the June 21, 2022 dismissal and directed the clerk to reopen the matter. All previously scheduled deadlines and appearances remained off the calendar. The case was stayed to allow time to identify and serve an appropriate successor or representative and to allow a potential motion for substitution under Rule 25.
The court directed McDonough to file a status report by September 30, 2022, if no successor or representative appeared. It also directed the clerk to mail the order to Franklin’s address of record and to Burton, Nathan A. Franklin, and Medina at the addresses listed in McDonough’s certificate of service.
The court expressly did not decide which, if any, of Franklin’s claims were extinguished by his death under applicable law.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.