Gardner v. Las Vegas Metropolitan Police Department

Filing 18

ORDER. IT IS ORDERED that 17 the Motion to Withdraw is GRANTED. Plaintiffs shall have until 9/25/2017, in which to retain substitute counsel who shall make an appearance in accordance with the requirements of the Local Rules of Practice. The cl erk of the court shall serve the plaintiffs with a copy of this order at their last known address. The 16 Motion to Stay is GRANTED to the extent that it is stayed for 30 days. Signed by Magistrate Judge Peggy A. Leen on 8/25/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ROBERT J. GARDNER, et al.,

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v.

Case No. 2:17-cv-00352-PAL
Plaintiffs,

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LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, et al.,

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ORDER
(Mot Stay – ECF No. 16)
(Mot WD Atty – ECF No. 17)

Defendants.

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Before the court is counsel for plaintiff Potter Law Offices’ Motion to Withdraw as

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Counsel and Stay Proceedings (ECF Nos. 16, 17). The motion represents that plaintiffs’ counsel’s

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present physical condition and health materially impairs his ability to represent his clients. The

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law firm consists of Mr. Potter and his son, who is unable to take over representation without his

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father’s ability to practice law. Mr. Potter seeks leave to withdraw as counsel of record, and a stay

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of proceedings while his clients obtain substitute counsel. An Amended Scheduling Order (ECF

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No. 15) was entered April 18, 2017, giving the parties until November 10, 2017, to complete

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discovery.

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Plaintiffs Robert and Kim Gardner have individual claims, and are also co-special

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administrators of the estate of Garrett Gardner, deceased. Courts routinely adhere “to the general

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rule prohibiting pro se plaintiffs from pursuing claims on behalf of others in a representative

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capacity.” See, e.g., Simon v. Hartford Life, Inc., 546 F.3d 661, 664–65 (9th Cir. 2008) (collecting

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cases). Additionally, estates may not proceed pro se in federal court. Joubert v. Brown Williamson

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Tobacco Corp., 466 F. App’x 588 (9th Cir. 2012) (affirming dismissal of action in which pro se

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plaintiff alleged claims as the personal representative of his mother’s estate) (citing Simon, 546

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F.3d at 664); Jones v. Corr. Med. Servs., 401 F.3d 950, 951–52 (8th Cir. 2005) (non-attorney

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administrator of decedent’s estate may not proceed pro se on behalf of estate); Iannaccone v. Law,
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142 F.3d 553, 559 (2nd Cir. 1998) (administrator of estate may not appear pro se on behalf of

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estate); Pridgen v. Andresen, 113 F.3d 391, 393 (2nd Cir. 1997) (executrix may not appear pro se

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on behalf of estate).

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Having reviewed and considered the matter, and for good cause shown,

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IT IS ORDERED:

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1. The Motion to Withdraw (ECF No. 17) is GRANTED.

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2. Plaintiffs shall have until September 25, 2017, in which to retain substitute counsel

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who shall make an appearance in accordance with the requirements of the Local Rules

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of Practice

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3. Plaintiffs’ failure to timely comply with this order by obtaining substitute counsel may

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result in the imposition of sanctions which may include a recommendation to the

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district judge that plaintiffs’ complaint be dismissed for failure to prosecute. See Fed.

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R. Civ. P. 41(b).

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4. The clerk of the court shall serve the plaintiffs with a copy of this order at their last

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known address:

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Robert J. Gardner, Co-Special Administrator
Kim Gardner, Co-Special Administrator
Estate of Garrett E. Gardner
27231 Calle Del Cid
Mission Viejo, CA 92691

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5. The Motion to Stay (ECF No. 16) is GRANTED to the extent that it is stayed for 30
days.
DATED this 25th day of August, 2017.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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