Filed: Jan. 08, 2019
Latest Update: Jan. 08, 2019
Summary: ORDER ON MOTION TO SUBSTITUTE A PROPER PARTY WILLIAM B. SHUBB , District Judge . Presently before the court is plaintiff's Motion to Substitute a Proper Party. (Docket No. 265.) Previously, Paul Levine, former counsel for defendants John McGinley and Robert McGinley, informed this court that defendant Robert McGinley passed away on September 10, 2018. (Docket No. 233.) In response to Mr. Levine's Motion to Withdraw as Attorney for John and Robert McGinley (Docket No. 223), this court ordere
Summary: ORDER ON MOTION TO SUBSTITUTE A PROPER PARTY WILLIAM B. SHUBB , District Judge . Presently before the court is plaintiff's Motion to Substitute a Proper Party. (Docket No. 265.) Previously, Paul Levine, former counsel for defendants John McGinley and Robert McGinley, informed this court that defendant Robert McGinley passed away on September 10, 2018. (Docket No. 233.) In response to Mr. Levine's Motion to Withdraw as Attorney for John and Robert McGinley (Docket No. 223), this court ordered..
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ORDER ON MOTION TO SUBSTITUTE A PROPER PARTY
WILLIAM B. SHUBB, District Judge.
Presently before the court is plaintiff's Motion to Substitute a Proper Party. (Docket No. 265.) Previously, Paul Levine, former counsel for defendants John McGinley and Robert McGinley, informed this court that defendant Robert McGinley passed away on September 10, 2018. (Docket No. 233.) In response to Mr. Levine's Motion to Withdraw as Attorney for John and Robert McGinley (Docket No. 223), this court ordered counsel "to [] contact John McGinley to procure any information about the estate of Robert McGinley, including identification of any representative of the estate, and inform plaintiff's attorney and the court of such information." (Order Re: Mot. to Withdraw as Counsel (Docket No. 235).) The court ultimately granted Mr. Levine's motion after he informed the court that he did not receive any response from John McGinley. (Order Re: Mot. to Withdraw as Counsel (Docket No. 247).) Since then, apparently no party has been able to ascertain the identity of the proper successor or representative of Robert McGinley.
Plaintiff's proposed order asks this court to substitute "[t]he executor of the Estate of Robert McGinley, or, if no individual is acting as the executor, then the administrator or distributee of the Estate" in place of Robert McGinley. However, there is no indication whether Robert McGinley had a will, chose to pass his assets via a trust, or died intestate. The court will not issue such an order without knowing the identity, or at least the legal description, of the individual or entity who is the proper party for the purposes Federal Rule of Civil Procedure 25(a)(1).1 Plaintiff has a "duty to make a reasonable inquiry regarding the representative of the estate or an appropriate successor." See In re MGM Mirage Sec. Litig., 282 F.R.D. 600, 603-04 (D. Nev. 2012).
IT IS THEREFORE ORDERED that plaintiff's Motion to Substitute a Proper Party (Docket No. 265.) is DENIED WITHOUT PREJUDICE. Plaintiff may refile his motion if and when he ascertains the identity of the proper party for the purposes of Rule 25. Because the court already extended fact discovery until March 18, 2019 (Docket No. 268), plaintiff's request that the court extend discovery for the limited purpose of allowing plaintiff to discover the administrator, executor, or distributee(s) of Robert McGinley's estate is DENIED AS MOOT.
