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