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