MOTION FOR SUBSTITUTION OF PARTY

CAM FERENBACH, Magistrate Judge.

Third-Party Plaintiffs Central Washington Asphalt ("CWA") and Donald Frank Hannon ("Hannon," together with CWA, the "CWA Third-Party Plaintiffs"), pursuant to Fed.R.Civ.P. 25(a), hereby move this Court for an Order substituting the Estate Mitchell Forrest Zemke, by and through its personal representative Kathryn Zemke (the "Estate"), for Third-Party Defendant Mitchell Zemke ("Mr. Zemke") as a party to this action. In support of this motion, the CWA Third-Party Plaintiffs state as follows:

1. On May 17, 2012, the CWA Third-Party Plaintiffs1 filed a Third-Party Complaint against Zemke and others [Doc. No. 44], and on October 17, 2014 filed an Answer to Amended Complaint and Third-Party Complaint [Doc. No. 345] alleging that Mr. Zemke and the other Third-Party Defendants were negligent in the manner in which they operated their respective vehicles thereby causing or contributing to the accident that is the subject of this action. The CWA Third-Party Plaintiffs seek a judgment of contribution and/or indemnity from Mr. Zemke for any and all damages and/or economic losses that Plaintiffs may recover against the CWA Third-Party Plaintiffs.

2. On February 26, 2016 Kathryn Zemke filed a Statement Noting Conterclaimant Mitchell Zemke's Death [Doc. No. 500] informing this Court that Mr. Zemke had passed away in December of 20152.

3. On or about February 29, 2016 Kathryn Zemke was appointed personal representative of the Estate of Mr. Zemke. See Statement of Informal Appointment of Personal Representative in Intestacy signed February 29, 2016 and entered March 4, 2016; and Letters of Administration and Oath entered in Case No. CV42-16-0698 in the District Court of the Fifth Judicial District of the State of Idaho, in and for the County of Twin Falls, Magistrate Division signed February 29, 2016 and entered March 4, 2016 (collectively, the "Estate Filings"). Copies of the Estate Filings are attached hereto as Exhibit A.

4. By Order entered on May 27, 2016 [Dkt. #511], the deadline to file a motion for substitution of party to substitute the Estate was extended up and including June 30, 2016.3

5. The CWA Third-Party Plaintiffs' claims are not extinguished by the death of Mr. Zemke. See Nev. Rev. Stat. § 41.100(1) (". . . no cause of action is lost by reason of the death of any person, but may be maintained by or against the person's executor or administrator"), and Nev.Rev. Stat. § 41.100(2) ("[i]n an action against an executor or administrator, any damages may be awarded which would have been recovered against the decedent if the decedent had lived").

6. The other parties to this action will not be prejudiced in any way by the substitution of the Estate as the substitution in name only and no additional act is necessary for the CWA Third-Party Plaintiffs to prosecute their case.

WHEREFORE, the CWA Third-Party Plaintiffs respectfully request that this Court substitute the Estate of Mitchell Forrest Zemke, by and through its personal representative Kathryn Zemke, as Third-Party Defendant in this action.

IT IS SO ORDERED.

EXHIBIT A

Upon consideration of the Application for Informal Appointment of Personal Representative in Intestacy filed by Kathryn Zemke, the Court finds that:

1. The Application is complete.

2. Application has made an oath that the statements contained in the Application are true to the best of Applicant's knowledge and belief.

3. Applicant appears from the Application to be an interested person as defined by the Idaho Uniform Probate Code.

4. The Decedent, Mitchell Forrest Zemke, died December 12, 2015, at the age of thirty-six (36) years.

5. On the basis of the statements in the Application, venue is proper.

6. Any required notice has been given or waived.

7. On the basis of the statements in the Application, no personal representative has been appointed in this state or elsewhere.

8. It appears from the application that the time limit for informal probate and appointment has not expired.

9. On the basis of the statements in the Application, the Decedent died intestate

10. The Application does not indicate the existence of a possible unrevoked testamentary instrument which may relate to property subject to the laws of this state, and no such instrument has been filed for probate in this Court.

11. Based on the statements in the Application, the person whose appointment as personal representative is sought is qualified to act as personal representative and has priority entitling said person to the appointment.

12. Bond is not required.

13. The applicable time period within which no action can be taken on an application for informal probate has elapsed.

14. The Decedent is survived by the following heirs:

NOW, THEREFORE, IT IS ORDERED AND DECREED that:

1. The Decedent died intestate and is survived by the issue listed above.

2. Under and by virtue of the laws of succession of the State of Idaho, the estate of the Decedent vests and is to be distributed to Decedent's spouse, Kathryn Zemke, and minor son, Nathan Michael Zemke.

3. Kathryn Zemke is hereby appointed personal representative of the estate of Mitchell Forrest Zemke, to act without bond.

4. Upon qualification and acceptance, letters of administration shall be issued.

5. Notice shall be given in accordance with I.C. § 15-3-705.

SO ORDERED this ____ day of ______________, 2016.

Kathryn Zemke was duly appointed and qualified by the Court as personal representative of the estate of the Decedent, Mitchell Forrest Zemke, with all authority pertaining thereto.

Administration of the estate is unsupervised.

These letters are issued to evidence the appointment, qualification, and authority of said personal representative.

WITNESS: Honorable Roger B. Harris, Magistrate of the above Court, with the seal thereof affixed the _______ day of _________, 2016.

Kathryn Zemke, being first duly sworn on oath, deposes and says:

I HEREBY ACCEPT the duties as personal Representative of the estate of Mitchell Forrest Zemke, and I do hereby solemnly swear that the duties of personal representative shall be performed according to law.

DATED this 26th day of February, 2016.