Voggenthaler, et al., v. Maryland Square, LLC, et al.,

Filing 1048

ORDER granting #1038 Motion to Substitute Party. Premier Trust as Trustee for Defendant Herman Kishner Trust substituted for Bank of America (Trustee). Signed by Magistrate Judge George Foley, Jr on 7/28/2014. (Copies have been distributed pursuant to the NEF - DKJ)

Case 2:08-cv-01618-RCJ-GWF Document 1038 Filed 07/02/14 Page 1 of 11

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DONGELL LAWRENCE FINNEY LLP
MICHAEL C. HETEY, ESQ.
Nevada Bar No. 5668
707 Wilshire Boulevard, 45th Floor
Los Angeles, CA 90017-3609
DONGELL LAWRENCE FINNEY LLP
RICHARD A. DONGELL, ESQ.
(CA Bar No. 128083 - Admitted Pro Hac Vice)
THOMAS F. VANDENBURG, ESQ.
(CA Bar No. 163446 - Admitted Pro Hac Vice)
PAUL D. RASMUSSEN, ESQ.
(CA Bar No. 201680 - th
Admitted Pro Hac Vice)
707 Wilshire Blvd., 45 Floor
Los Angeles, CA 90017
Phone: [phone] / Fax: [phone]
LAW OFFICES OF STEVEN J. PARSONS
STEVEN J. PARSONS
Nevada Bar No. 363
7201 W. Lake Mead Blvd., Ste. 108
Las Vegas, NV 89128-8354
Phone: [phone] / Fax: [phone]

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Attorneys for Defendants/Third-Party Plaintiffs Maryland Square
Shopping Center, LLC, the Herman Kishner Trust d/b/a Maryland
Square Shopping Center, Irwin Kishner, Jerry Engel, and Bank of
America, N.A., as Trustees for The Herman Kishner Trust

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
Case No.:
2:08-cv-01618-RCJ-GWF
PETER J. VOGGENTHALER; et. al.
Plaintiffs,
KISHNER DEFENDANTS’ MOTION TO
vs.
SUBSTITUTE PARTY
MARYLAND SQUARE, LLC; et. al.

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Defendants.

(Fed. R. Civ. P., Rule 25 (c))

AND RELATED CROSS AND THIRD PARTY
CLAIMS
CONSOLIDATED WITH:
STATE OF NEVADA, DEPT. OF
CONSERVATION AND NATURAL
Case No.:
3:09-cv-231-RCJ-GWF
RESOURCES, et. al.
Plaintiff,
vs.
MARYLAND SQUARE SHOPPING CENTER,
LLC, et. al.
Defendants.
AND RELATED THIRD PARTY CLAIMS

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1.
KISHNER DEFENDANTS’ MOTION TO SUBSTITUTE PARTY

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Defendants and Third Party Plaintiffs MARYLAND SQUARE SHOPPING

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CENTER, LLC, THE HERMAN KISHNER TRUST d/b/a Maryland Square Shopping Center,

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IRWIN KISHNER, as Trustee for the Herman Kishner Trust; JERRY ENGEL, as Trustee for

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the Herman Kishner Trust; BANK OF AMERICA, N.A., as Trustee for the Herman Kishner

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Trust; (generally “the Kishner Defendants”) by their counsel, Thomas F. Vandenburg of Dongell

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Lawrence Finney LLP, hereby move the Court for an Order substituting as defendant, herein,

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Premier Trust, Inc., a Nevada corporation, (“Premier Trust”) as a Trustee for Defendant Herman

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Kishner Trust, upon the earlier resignation of Defendant Bank of America, N.A., and

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confirmation of Premier Trust as Trustee for Defendant Herman Kishner Trust.

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This Motion is brought upon Fed. R. Civ. P., Rule 25 (c), the following

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Memorandum of Points and Authorities, the attached Declaration of Kishner Defendants’

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counsel, Thomas F. Vandenburg, the exhibit attached hereto and on what other evidence the

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Court may adduce at any hearing upon the Request.

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Dated the 2nd day of July, 2014.

DONGELL LAWRENCE FINNEY LLP

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By:

/s/Thomas F. Vandenburg
Thomas F. Vandenburg
Attorneys for Defendants/Third-Party Plaintiffs
Maryland Square Shopping Center, LLC, the
Herman Kishner Trust d/b/a Maryland Square
Shopping Center, Irwin Kishner, Jerry Engel, and
Bank of America, N.A., as Trustees for The Herman
Kishner Trust

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2.
KISHNER DEFENDANTS’ MOTION TO SUBSTITUTE PARTY

Case 2:08-cv-01618-RCJ-GWF Document 1038 Filed 07/02/14 Page 3 of 11

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MEMORANDUM OF POINTS AND AUTHORITIES

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On or about July 12, 2013, the Probate Court of the Eighth Judicial District Court,

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Clark County, Nevada (“Probate Court”), entered an Order, allowing Defendant Bank of

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America, N.A., as Trustee for Defendant Herman Kishner Trust, to withdraw as Trustee for

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Defendant Herman Kishner Trust.

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In the same proceeding before the Probate Court, Premier Trust, Inc., a

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Nevada corporation, was accepted and appointed by the Probate Court as a successor Trustee and

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was installed as a Trustee for Defendant Herman Kishner Trust.

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A copy of the July 12, 2013 Order of the Probate Court is attached hereto
and incorporated herein as Exhibit “A.”

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Fed. R. Civ. Proc., Rule 25 (c) provides,

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(c) Transfer of Interest. If an interest is transferred, the
action may be continued by or against the original party
unless the court, on motion, orders the transferee to be
substituted in the action or joined with the original party.

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As a corporate fiduciary and Trustee, by Order of the Probate Court, Premier

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Trust steps into the same position as Trustee for Defendant Herman Kishner Trust, as was its

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predecessor, Bank of America, N.A.
Wherefore, Kishner Defendants hereby move this Court for an Order to

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allow the substitution of these parties, namely, Premier Trust as Trustee for Defendant Herman

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Kishner Trust, and therefore a defendant, herein, instead of its predecessor, Defendant

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Bank of America, N.A.

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3.
KISHNER DEFENDANTS’ MOTION TO SUBSTITUTE PARTY

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Further, Kishner Defendants seek the Court’s Order directed to the Clerk of the

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Court that the caption and all of the records of this case be changed to show that Premier Trust is

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now substituted for its predecessor, Bank of America, N.A. as Trustee for Defendant Herman

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Kishner Trust, and as defendant, herein.

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Dated the 2nd day of July, 2014.

DONGELL LAWRENCE FINNEY LLP

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By:

/s/Thomas F. Vandenburg
Thomas F. Vandenburg
Attorneys for Defendants/Third-Party Plaintiffs
Maryland Square Shopping Center, LLC, the
Herman Kishner Trust d/b/a Maryland Square
Shopping Center, Irwin Kishner, Jerry Engel, and
Bank of America, N.A., as Trustees for The Herman
Kishner Trust

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ORDER
IT IS SO ORDERED.

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DATED: July ____, 2014
____________________________________
ROBERT C. JR.
GEORGE FOLEY,JONES
U.S. District Court Judge Judge
United States Magistrate

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4.
KISHNER DEFENDANTS’ MOTION TO SUBSTITUTE PARTY

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DECLARATION OF THOMAS F. VANDENBURG

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I, Thomas F. Vandenburg, declare and state as follows:

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I am an attorney licensed to practice law before all courts in the State of

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California, and pro hac vice before the State Courts in Nevada, and am a partner in the law firm

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of Dongell Lawrence Finney LLP (“DLF”), and attorney of record for the parties we have all

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come to refer to as “the Kishner Defendants” in this action. I make this Declaration of my own

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personal knowledge, and could and would testify to the facts stated herein in a Court of law if

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called upon to do so.

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2. I prepared the foregoing Motion to substitute parties. It is true and correct to
my personal knowledge, and where applicable, I assert I believe it to be true.
3. I maintain and supervise the day-to-day maintenance of my offices’ records,

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such that I am the Custodian of Records for my offices. I can attest that the attached Order,

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attached as exhibit “A”, is a true and correct copy of the Order as entered by the Court, having

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been provided the copy of the Order by co-counsel for Kishner Defendants, Steven J. Parsons of

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The Law Offices of Steven J. Parsons.

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I declare under penalty of perjury that the foregoing is true and correct.

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Dated the 2nd day of July, 2014.

By:

/s/Thomas F. Vandenburg
Thomas F. Vandenburg

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5.
KISHNER DEFENDANTS’ MOTION TO SUBSTITUTE PARTY

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Case 2:08-cv-01618-RCJ-GWF Document 1038 Filed 07/02/14 Page 11 of 11

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PROOF OF SERVICE
IT IS HEREBY CERTIFIED THAT:

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I, the undersigned, am a citizen of the United States of America, am over the age

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of 18 and not a party to the within action. My business address is 707 Wilshire Boulevard, 45th

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Floor, Los Angeles, CA 90017-3609. On July 2, 2014, I served a copy of the foregoing

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document described as follows:

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KISHNER DEFENDANTS’ MOTION TO SUBSTITUTE PARTY

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(Fed. R. Civ. P., Rule 25 (c))

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served:
[ X ] Electronically in accordance with United States District Court of the District

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of Nevada Electronic Filing Procedures, Section IV Service, B. Electronic

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Service.

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I declare that I am employed in the office of an attorney who has been admitted
pro hac vice for the purpose of this case only to the bar of this court at whose direction the
service was made.
Under penalty of perjury, I declare the aforesaid to be true and correct.
Executed on July 2, 2014.

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By:

/s/ Sheryl R. Douglas
Sheryl R. Douglas

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6.
KISHNER DEFENDANTS’ MOTION TO SUBSTITUTE PARTY