Filed: Oct. 24, 2018
Latest Update: Oct. 24, 2018
Summary: STIPULATION AND ORDER TO EXTEND TIME FOR DISPOSITIVE MOTIONS PENDING SUBSTITUTION OF SUCCESSOR IN INTERST GLORIA M. NAVARRO , Chief District Judge . Defendants, ANDREW "BUTCH" BORASKY and NYE COUNTY, NEVADA, by and through their attorney of record, REBECCA BRUCH, ESQ. of ERICKSON, THORPE & SWAINSTON, LTD., and Plaintiffs DENNIS HOF, DONALD COX and JOSEPH BURDZINSKI, Plaintiffs, by and through their attorneys of record, THOMAS J. GIBSON and GIBSON LAW GROUP, hereby stipulate to extend the d
Summary: STIPULATION AND ORDER TO EXTEND TIME FOR DISPOSITIVE MOTIONS PENDING SUBSTITUTION OF SUCCESSOR IN INTERST GLORIA M. NAVARRO , Chief District Judge . Defendants, ANDREW "BUTCH" BORASKY and NYE COUNTY, NEVADA, by and through their attorney of record, REBECCA BRUCH, ESQ. of ERICKSON, THORPE & SWAINSTON, LTD., and Plaintiffs DENNIS HOF, DONALD COX and JOSEPH BURDZINSKI, Plaintiffs, by and through their attorneys of record, THOMAS J. GIBSON and GIBSON LAW GROUP, hereby stipulate to extend the de..
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STIPULATION AND ORDER TO EXTEND TIME FOR DISPOSITIVE MOTIONS PENDING SUBSTITUTION OF SUCCESSOR IN INTERST
GLORIA M. NAVARRO, Chief District Judge.
Defendants, ANDREW "BUTCH" BORASKY and NYE COUNTY, NEVADA, by and through their attorney of record, REBECCA BRUCH, ESQ. of ERICKSON, THORPE & SWAINSTON, LTD., and Plaintiffs DENNIS HOF, DONALD COX and JOSEPH BURDZINSKI, Plaintiffs, by and through their attorneys of record, THOMAS J. GIBSON and GIBSON LAW GROUP, hereby stipulate to extend the deadline for dispositive motions precipitated by the death of Plaintiff Dennis Hof.
MEMORANDUM OF POINTS & AUTHORITIES
I. PROCEDURAL HISTORY AND CURRENT STATUS
On or about March 26, 2018, this matter was removed from state court to Federal Court. ECF No. 1. On approximately July 10, 2018, Defendants filed a Motion for Judgment on the Pleadings. ECF No. 13. Plaintiffs opposed the Motion on July 24, currently pending before this Court.
On approximately Monday, October 8, 2018, Mr. Hof passed away. On Tuesday, October 9, 2018, Defendants filed a Suggestion of Death in this case. ECF No. 18.
II. LEGAL ARGUMENT
FRCP 25 (a) holds as follows:
(1) Substitution if the Claim Is Not Extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.
(3) Service. A motion to substitute, together with a notice of hearing must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner. Service may be made in any judicial district.
FRCP 25(a)(1) and (3).
Dispositive motions in this case are due on October 24, 2018. ECF No. 10.
Until a motion for substitution has been made and granted, the court has no authority to proceed with the deceased party's case. See, e.g., Campbell v. State of Iowa, Third Judicial District Department of Correctional Services, 702 F.3d 1140, 1141-42 (8th Cir. 2013)(court may not proceed until proper party is substituted for deceased person).
While Defendants filed the Suggestion of Death on October 19, 2018, they have not yet ascertained the identity of the successor to Mr. Hof's estate, or his successor in interest to this action, if any. As soon as that information is known, the Suggestion of Death will be served on the successor and the other plaintiffs. In the meantime, the Parties stipulate to stay the current deadline for dispositive motions for 60 days to allow time for Mr. Hof's successor to be named, and substituted into this litigation if the estate determines it wants to continue with this case. If at the end of 60 days the matter is still in limbo, the Parties may request an additional extension of time to determine if the matter is going forward, and if so, with which parties.
III. CONCLUSION
Based upon the foregoing, the Parties hereby stipulate and request the Court grant an extension of time to December 24, 2018, in order to file dispositive motions if any are to be forthcoming.
ORDER
IT IS SO ORDERED that the deadline to file dispositive motions shall be extended 60 days from the current deadline of October 24, 2018.
