Bolding et al v. NAV-LVH Casino, LLC et al

Filing 55

ORDER that Plaintiff may file a supplemental brief in support of his 51 motion to substitute no later than August 24, 2017. Defendant may file a supplement within seven days of Plaintiff's supplement. Signed by Magistrate Judge Carl W. Hoffman on 8/10/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 6 7 8 9 10 CHARLES BOLDING, et al, ) ) Plaintiff, ) ) v. ) ) NAV-LVH, LLC, ) ) Defendant. ) ) _______________________________________ ) Case No. 2:16-cv-00617-RFB-CWH ORDER Presently before the Court is Plaintiff Tony Varay’s motion to substitute (ECF No. 46) filed 11 on June 27, 2017. Defendant filed a response (ECF No. 51) on July 21, 2017, and Plaintiff filed a 12 reply (ECF No. 54) on August 8, 2017. 13 Plaintiff moves to substitute Robert Varay in place of Toni Varay, who is deceased. Plaintiff 14 represents that Robert Varay is Toni Varay’s son and sole legal heir, so he should be allowed to 15 continue on in this case as Toni Varay’s legal representative. Defendant opposes the substitution, 16 arguing that Mr. Varay has not established that he is entitled to serve as Toni Varay’s legal 17 representative under Nevada law. Defendant further argues that regardless of substitution, Toni 18 Varay’s claims for penal or punitive damages were extinguished upon her death. 19 Defendant’s argument against substitution relies on Mahoney v. Fahey, 200 F.2d 918, 920 20 (9th Cir. 1952). The Court does not agree with Defendant’s assertion that Mahoney requires denial 21 of the motion with prejudice. However, the case does suggest that a new party may not substitute for 22 a deceased party without establishing that the new party is the proper legal representative of the 23 deceased. It is a matter of Nevada law whether or not Robert Varay is Toni Varay’s proper legal 24 representative, but the parties briefings thus far have not provided a clear answer to that question. 25 The Court requires further briefing on this issue. 26 As for Defendant’s argument that Plaintiff’s penal or punitive damages were extinguished 27 upon her death, the Court need not make that determination at this point. The operative complaint 28 (ECF No. 39) seeks compensatory as well as penal or punitive damages, and Defendant does not 1 1 argue that the claim for compensatory damages was extinguished upon Toni Varay’s death. 2 Therefore, for purposes of Fed. R. Civ. Proc. 25(a), Plaintiff’s claim is not extinguished. 3 IT IS THEREFORE ORDERED that Plaintiff may file a supplemental brief in support of his 4 motion to substitute (ECF No. 51) no later than August 24, 2017. Defendant may file a supplement 5 within seven days of Plaintiff’s supplement. Any supplemental briefs for this motion shall be limited 6 to the issue of whether under Nevada law, Robert Varay may serve as Toni Varay’s legal 7 representative in this case, and if so, whether this Court has authority to approve such an 8 appointment. 9 DATED: August 10, 2017 10 11 _________________________________ C.W. Hoffman, Jr. United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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