Downie v. National Security Technologies LLC

Filing 24

ORDER Granting 22 Plaintiff's Motion to Substitute Arlisa Jackson as Successor-In Interest to deceased Plaintiff Nathaniel J. Downie for the limited purpose of allowing Ms. Jackson to file a responsive pleading to the 23 Motion to Dismiss. Signed by Magistrate Judge Cam Ferenbach on 7/29/2013. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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NATHANIEL J. DOWNIE,

2:11-cv-02090-GMN-VCF

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Plaintiff,

ORDER

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vs.
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NATIONAL SECURITY TECHNOLOGIES,

(Motion To Substitute Party #22)

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LLC,
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Defendant.
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Before the court is plaintiff Nathaniel J. Downie’s (Deceased) Motion to Substitute Arlisa
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Jackson as Successor-In-Interest To Deceased Plaintiff Nathaniel J. Downie. (#22). No Opposition was
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filed.1
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A.

Background

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Plaintiff Downie filed his complaint on December 26, 2011, against defendant National Security
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Technologies asserting claims under Title VII of the Civil Rights Act of 1964. (#1). Defendant filed its
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answer on February 2, 2012. (#6). On February 9, 2012, the parties filed a proposed discovery plan and
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scheduling order (#9), which the court signed on the same day (#10). On February 24, 2012, the court
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issued an order scheduling an Early Neutral Evaluation Conference for March 6, 2012. (#11). On
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March 7, 2012, the court held the Early Neutral Evaluation Conference and the parties did not reach a
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settlement. (#12).
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As discussed below, the court construes defendant’s motion to dismiss (#23) as both an opposition to the motion to
substitute (#22) and an independent motion to dismiss (#23).

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On August 28, 2012, defendant filed a motion for summary judgment. (#14). On October 5,
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2012, plaintiff filed an opposition to the motion for summary judgment. (#17). On October 22, 2012,
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defendant filed a reply in support of the motion for summary judgment. (#18). On March 22, 2013,
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plaintiff filed a Notice of Death, stating that plaintiff died on February 22, 2013, and that a “motion will
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be filed pursuant to Fed. R. Civ. P. 25 to substitute Mr. Downie’s surviving spouse, in the place and
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stead of Mr. Downie for purposes of pursuing this matter.” (#19). On April 16, 2013, defendant filed a
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notice of non-opposition to the Notice of Death (#19), asserting that defendant “hereby provides its
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notice of non-opposition to the Plaintiff’s Motion to Substitute dated April 1, 2013.2” (#20).

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Also on April 16, 2013, the court issued a minute order stating that “[i]n accordance with
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counsel's Notice of Death of Plaintiff Nathaniel J. Downie filed on March 22, 2013 as Document 19,
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counsel is directed to file a motion in accordance with Fed. R. Civ. P. 25 to substitute Plaintiff's
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surviving spouse in the place and stead of Plaintiff for purposes of pursing this matter. In accordance
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with Fed. R. Civ. P. 25(a)(1), if the motion is not made within 90 days after service of a statement
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noting the death, the action by or against the decedent must be dismissed.” (#21). On July 2, 2013,
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plaintiff filed the instant motion to substitute party. (#22). Any opposition was due by July 19, 2013.
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On July 16, 2013, defendants filed a motion to dismiss under Federal Rule of Civil Procedure 25(a)(1)
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and 41. (#23). Any opposition is due on or before August 2, 2013.
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B.

Motion to Substitute

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Rule 25(a)(1) of the Federal Rules of Civil Procedure, “[i]f a party dies and the claim is not
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extinguished, the court may order substitution of the proper party. A motion for substitution may be
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made by any party or by the decedent's successor or representative. If the motion is not made within 90
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days after service of a statement noting the death, the action by or against the decedent must be
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dismissed.” The Notice of Death was filed on March 22, 2013. (#19). The motion for substitution was
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due on or before June 22, 2013. See Fed. R. Civ. P. 25(a)(1).
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No such motion appears on the court’s docket.
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The motion to substitute asserts that “[o]n February 22, 2013, Mr. Downie died of a massive
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heart attack at the age of 62,” and that “[h]e is survived by his wife, Arlisa Jackson, and by his adult
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children.” (#22). The motion also asserts that Ms. Jackson “serves as the executrix/administratrix of
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Mr. Downie’s estate,” and that substitution of Ms. Jackson as plaintiff in this action is proper under Rule
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25. Id. The motion states that “under Nevada law, Mr. Downie’s three claims for relief pled in his
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Complaint would survive his passing.” Id (citing NRS 41.100(1) and 41.100(3)).
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Defendant did not file an opposition to the motion to substitute (#22). The motion to dismiss
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(#23), however, asserts that plaintiff’s motion to substitute was untimely under Rule 25(a)(1), and that
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the complaint should be dismissed for failure to comply with Rule 25(a)(1) and this court’s order (#21).
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The court construes defendant’s motion to dismiss (#23) as an opposition to the motion to substitute
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(#22) and an independent motion to dismiss. The motion to substitute (#22) is pending before this court.
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To facilitate briefing of the issues in this case, the court grants the motion to substitute for the limited
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purpose of allowing Ms. Jackson to file a responsive pleading to the motion to dismiss (#23). This order
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does not rule on the issue of the timeliness of the motion to substitute (#22).
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Accordingly and for good cause shown,
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IT IS ORDERED that plaintiff Nathaniel J. Downie’s (Deceased) Motion to Substitute Arlisa
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Jackson as Successor-In-Interest To Deceased Plaintiff Nathaniel J. Downie (#22) is GRANTED for the
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limited purpose of allowing Ms. Jackson to file a responsive pleading to the motion to dismiss (#23).
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IT IS THEREFORE ORDERED that Ms. Jackson is temporarily substituted as successor-in21

interest to deceased plaintiff Nathaniel J. Downie.
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DATED this 29th day of July, 2013.
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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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