Avila v. Federal National Mortgage Association

Filing 29

ORDER DISMISSING CASE without prejudice. Signed by Judge Gloria M. Navarro on 11/26/2013. (Copies have been distributed pursuant to the NEF - SLR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 SAMUEL V. AVILA, 4 5 Plaintiff, vs. 6 7 FEDERAL NATIONAL MORTGAGE ASSOCIATION, 8 Defendants. 9 10 ) ) ) ) ) ) ) ) ) ) Case No.: 2:13-cv-00569-GMN-GWF ORDER According to the documents filed in this case, pro se Plaintiff Samuel V. Avila initiated 11 this action on March 6, 2013 in the Eighth Judicial District Court of the State of Nevada against 12 Defendant Federal National Mortgage Association. (Notice of Removal ¶ 1, ECF No. 1.) 13 Defendant subsequently removed the action to this Court based on diversity jurisdiction. (Id. 14 ¶¶ 2-6.) 15 On November 1, 2013, Defendant filed a Notice of Suggestion of Death, in which 16 Defendant stated that Plaintiff’s daughter, Elvia Avila, notified Defendant’s counsel that 17 Plaintiff Samuel V. Avila previously passed away on November 17, 2012. (Suggestion of 18 Death, ECF No. 24.) The Court then entered an Order to Show Cause why the case should not 19 be dismissed given that Plaintiff was deceased at the time the lawsuit was initiated. (Order, 20 ECF No. 27.) Both parties filed a response. (ECF Nos. 27, 28.) 21 Legal actions cannot be commenced by deceased individuals; any such “action must be 22 treated as a nullity.” See Banakus v. United Aircraft Corp., 290 F. Supp. 259, 260 (S.D.N.Y. 23 1968); see also Adelsberger v. United States, 58 Fed.Cl. 616 (Fed.Cl.,2003) (noting that when a 24 plaintiff dies prior to the filing of a complaint, he lacks the capacity to sue). Additionally, 25 because such an action would be void at its inception, the complaint “cannot be given life by Page 1 of 2 1 substituting parties and amending the complaint.” Banakus, 290 F. Supp. at 260; see 2 Adelsberger, 58 Fed. Cl. 616 (Fed. Cl. 2003) (concluding that substitution of the deceased’s 3 estate was inappropriate where the plaintiff predeceased the filing of the complaint); see also 4 Fed. R. Civ. P. 25(a) (providing for substitution in the event of a parties death after the 5 initiation of a lawsuit). 6 7 Because Samuel V. Avila predeceased the commencement of this action, it was void at its inception and must be dismissed. 8 CONCLUSION 9 IT IS HEREBY ORDERED that Plaintiff’s Complaint is DISMISSED without 10 prejudice. 11 The Clerk of the Court shall enter judgment accordingly. 12 DATED this 26th day of November, 2013. 13 14 15 16 ___________________________________ Gloria M. Navarro United States District Judge 17 18 19 20 21 22 23 24 25 Page 2 of 2

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