AMCO Insurance Company v. Bacon, et al

Filing 36

ORDER Granting 35 Motion to Substitute Party. Christopher L. Bacon substituted as a defendant and counter-defendant in place of Thomas Bacon. Signed by Magistrate Judge Peggy A. Leen on 6/2/17. (Copies have been distributed pursuant to the NEF - ADR)

Case 2:16-cv-00543-JAD-PAL Document 35 Filed 05/26/17 Page 1 of 5

1
2
3
4
5
6
7
8

TOM LARMORE
Nevada Bar No. 7415
[e-mail]
CHRISTINE M. EMANUELSON
Nevada Bar No. 10143
[e-mail]
BRIAN PELANDA
Pro Hac Vice, California Bar No. 278453
[e-mail]
HINES HAMPTON LLP
6952 Encore Way
Las Vegas, NV 89119
Tel.: [phone]
Fax: [phone]

ROBERT D. VANNAH
Nevada Bar No. 002503
VANNAH & VANNAH
400 S. Fourth Street, 6th Floor
Las Vegas, NV 89101
Tel: [phone]
Fax: [phone]
[e-mail]
PAUL D. POWELL
Nevada Bar No. 7488
THE POWELL LAW FIRM
6785 West Russell Road, Second Floor
Las Vegas, NV 89118
Tel: [phone]
Fax: [phone]
[e-mail]

9
10

Attorneys for Plaintiff/Cross-Defendant
AMCO INSURANCE COMPANY

11

Attorneys for Defendant Michele PaunessaBacon and Christopher L. Bacon

12
13

UNITED STATES DISTRICT COURT

14

DISTRICT OF NEVADA

15
16

CASE NO.: 2:16-cv-00543-JAD-PAL

AMCO INSURANCE COMPANY, an Iowa
Corporation,
Plaintiff,

17
18

vs.

19

JOINT MOTION FOR AN ORDER
SUBSTITUTING CHRISTOPHER L.
BACON INTO THIS ACTON AS A
DEFENDANT AND COUNTERCLAIMANT IN PLACE OF THOMAS
BACON

THOMAS BACON, an individual, MICHELE
PAUNESSA-BACON, an individual,

20

Defendants,

21
22
23
24

[Rule 25(a)(1)]

THOMAS BACON, an individual,
Counter-Claimant,
vs.

25
26
27

AMCO INSURANCE COMPANY, an Iowa
Corporation,
Counter-Defendant,

28
1
JOINT MOTION FOR ORDER SUBSTITUTING CHRSTOPHER BACON IN AS A PARTY

Case 2:16-cv-00543-JAD-PAL Document 35 Filed 05/26/17 Page 2 of 5

Plaintiff/Counter-Defendant AMCO Insurance Company (“AMCO”), Defendant Michele

1
2

Paunessa-Bacon, and non-party Christopher L. Bacon hereby submit the following Joint Motion

3

pursuant to Rule 25 for an Order substituting Christopher L. Bacon into this action as a defendant

4

and counter-claimant in his capacity as the Special Administrator for the Estate of Thomas Bacon.

5

I.

SUMMARY OF THE FACTS.
1.

6
7

died on November 5, 2016.
2.

8
9

Thomas Bacon, one of the Defendants and the sole Counterclaimant in this action,

On March 7, 2017, Christopher L. Bacon filed a petition in the District Court for

Clark County, Nevada to be appointed as the Special Administrator of Thomas Bacon’s estate.
3.

10

On April 5, 2017, the District Court issued an Order granting letters of special

11

administration for the Estate of Thomas Lee Bacon to Christopher L. Bacon. According to that

12

Order, the District Court granted Christopher Bacon the powers enumerated in N.R.S. 140.040. A

13

true and correct copy of the forgoing Order is attached hereto as Exhibit A.

14

II.

CHRISTOPHER BACON SHOULD BE SUBSTITUTED IN TO THIS ACTION.

15

A.

The Standard for Substitution.

16

4.

“If a party dies and the claim is not extinguished, the court may order substitution

17

of the proper party.” Fed. R. Civ. P. 25(a)(1). “A motion for substitution may be made by any

18

party or by the decedent’s successor or representative.” Id. “[A] timely motion brought by the

19

Administratrix of a deceased party is within the terms of the Rule’s operation.” Boggs v. Dravo

20

Corp., 532 F.2d 897, 900 (3d Cir. 1976). See also F.T.C. v. AMG Services, Inc., 2014 WL

21

2742872 at *2 (D. Nev., June 17, 2014) (holding that the executor of a deceased party’s estate is a

22

“proper party” under Rule 25).

23

5.

“The estate of a deceased party is not a proper party under Rule 25. . . . A proper

24

party under Rule 25 must be a legal representative of the deceased.” Natale v. Country Ford Ltd.,

25

287 F.R.D. 135, 137 (E.D.N.Y. 2012).

26
27

6.

Upon a substitution made under Rule 25, “[t]he substituted party steps into the

same position as original party.” Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 1996).

28
2
JOINT MOTION FOR ORDER SUBSTITUTING CHRSTOPHER BACON IN AS A PARTY

Case 2:16-cv-00543-JAD-PAL Document 35 Filed 05/26/17 Page 3 of 5

B.

1

Christopher L. Bacon is a “Proper Party” to be Substituted into this Action in
Place of Thomas Bacon.

2
7.

3

Under Nevada law, there are several circumstances under which a court must

4

appoint a special administrator to collect and take charge of a decedent’s estate. See N.R.S.

5

140.010.

6

8.

7

or defend actions and other legal proceedings as a personal representative.”
9.

8
9

Under N.R.S. 140.040(2)(a), the special administrator of an estate may “maintain

In this case, the District Court of Nevada appointed Christopher L. Bacon to be the

Special Administrator for the Estate of Thomas Lee Bacon, with “the powers enumerated in

10

N.R.S. 140.040.”

11

10.

As a result, Christopher L. Bacon has the power to “maintain or defend” this action

12

as a “personal representative” of the Estate of Thomas Bacon. See Trustees of Bricklayers &

13

Allied Craftworkers Local 13 Defined . . . v. Jim Bird Title & Marble, et al., 2012 WL 760732 at *

14

1 (D. Nev., March 8, 2012) (ordering that the deceased defendant’s wife be substituted in as

15

defendant to the action, but only in her capacity as the Special Administrator for his estate and not

16

in her individual capacity).

17

III.

18

CONCLUSION.
11.

The parties to this stipulation request that Christopher L. Bacon be substituted in as

19

a party to this action as a Defendant and as the sole Counter-claimant in place of Thomas Bacon,

20

but only in his capacity as the Special Administrator for the Estate of Thomas Bacon.

21

12.

The parties acknowledge that as a result of the requested substitution, Christopher

22

L. Bacon shall “step[] into the same position as [Thomas Bacon]” stood in this action prior to his

23

death. Hilao, 103 F.3d at 766.

24
25

13.

To accommodate Christopher L. Bacon’s substitution into this action, the parties

further request that the Court amend the existing case schedule as follows:

26

Discovery Cut-Off

From June 30, 2017 to August 31, 2017

27

Dispositive Motion Filing Date

From July 28, 2017 to September 28, 2017

28

Pretrial Order

From August 29, 2017 to October 27, 2017
3

JOINT MOTION FOR ORDER SUBSTITUTING CHRSTOPHER BACON IN AS A PARTY

Case 2:16-cv-00543-JAD-PAL Document 35 Filed 05/26/17 Page 4 of 5

1

Dated: May 26, 2017

HINES HAMPTON LLP

2

/s/ Brian Pelanda
Christine M. Emanuelson
Brian Pelanda
Attorneys for Plaintiff/Counter-defendant
AMCO INSURANCE COMPANY

3
4
5
6
7
Dated: May 26, 2017

VANNAH & VANNAH /
THE POWELL LAW FIRM

8
9

/s/ Robert D. Vannah
Robert D. Vannah
Paul D. Powell
Attorneys for Michele Paunessa-Bacon and
Christopher L. Bacon

10
11
12
13
14

IT IS SO ORDERED:

15
16
___________________________________
UNITED STATES MAGISTRATE JUDGE

17
18

DATED:

19

June 2, 2017
________________________

20
21
22

ATTESTATION OF CONCURRENCE IN FILING
I hereby attest and certify that on May 23, 2017, I received concurrence from counsel for

23

Michele Paunessa-Bacon and Christopher L. Bacon, Robert Vannah, to file this document with his

24

electronic signature attached.

25
26

I certify under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. Executed on May 23, 2017.
/s/ Brian Pelanda
Brian Pelanda

27
28
4

JOINT MOTION FOR ORDER SUBSTITUTING CHRSTOPHER BACON IN AS A PARTY

Case 2:16-cv-00543-JAD-PAL Document 35 Filed 05/26/17 Page 5 of 5

CERTIFICATE OF SERVICE
I hereby certify that on May 26, 2017, I electronically filed the foregoing
document or paper with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to the e-mail addresses denoted on the attached Electronic Mail
Notice List, and I hereby certify that I have mailed the foregoing document or paper via
the United States Postal Service to the non-CM/ECF participants indicated on the
attached Manual Notice List.
I certify under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct. Executed on May 26, 2017.

Ayvette Hernandez

Electronic Mail Notice List
Mark L. Jackson- [e-mail]
Paul D Powell- [e-mail]
Robert D. Vannah – [e-mail]