The Bank of New York Mellon v. Grimes et al

Filing 41

ORDER. IT IS HEREBY ORDERED that 40 Plaintiff's Motion to Substitute and 38 Motion for Service by Publication are denied, without prejudice. Signed by Magistrate Judge George Foley, Jr on 9/19/17. (Copies have been distributed pursuant to the NEF - ADR)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 THE BANK OF NEW YORK MELLON, ) ) Plaintiff, ) ) vs. ) ) WILLIE GRIMES, et al., ) ) Defendants. ) __________________________________________) Case No. 2:17-cv-01013-RFB-GWF ORDER 12 13 This matter is before the Court on Plaintiff’s Motion to Substitute (ECF No. 40), filed on 14 September 14, 2017 and Plaintiff’s Motion for Service by Publication (ECF No. 38), filed on 15 September 13, 2017. 16 DISCUSSION 17 18 Federal Rule of Civil Procedure 25 governs a motion for substitution and a notice of death. The Rule provides: 19 (a) Death 20 (1) Substitution if the Claim is Not Extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed. 21 22 23 ... 24 (3) Service. A motion to substitute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner. Service may be made in any judicial district. 25 26 27 Fed.R.Civ.P. 25(a). 28 ... 1 The rule requires two affirmative steps in order to trigger the running of the 90–day period. 2 Barlow v. Ground, 39 F.3d 231, 233 (9th Cir.1994). “First, a party must formally suggest the death 3 of the party upon the record.” Id. (citing Anderson v. Aurotek, 774 F.2d 927, 931 (9th Cir.1985); 4 Grandbouche v. Lovell, 913 F.2d 835 (10th Cir.1990)). “Second, the suggesting party must serve 5 other parties and nonparty successors or representatives of the deceased with a suggestion of death 6 in the same manner as required for service of the motion to substitute.” Barlow, 39 F.3d at 233; 7 Fed.R.Civ.P. 25(a). 8 9 Plaintiff represents that during its attempt to serve Defendant Willie Grimes with process, it discovered that Defendant Grimes is deceased. Plaintiff formally suggested Defendant Grimes’ 10 death on September 13, 2017. See ECF No. 37. That same day, Plaintiff moved, pursuant to Fed. 11 R. Civ. P. 25, to substitute Defendant Grimes’ unknown heirs in his place and requests leave to 12 serve the unknown heirs by publication. 13 Plaintiff has not made the requisite showing of due diligence to justify an order allowing 14 service by publication on Defendant Grimes’ unknown heir or heirs. Specifically, Plaintiff has 15 failed to demonstrate that it has made any attempt to locate Defendant Grimes’ heirs prior to its 16 request.1 Rather, it simply states that the heirs cannot be ascertained and directs the Court to Exhibit 17 A of the Notice of Suggestion of Death (ECF No. 37). Exhibit A is a declaration of counsel, which 18 does not even mention any efforts made by Plaintiff to ascertain Plaintiff’s heirs. Exhibit 1 to 19 Exhibit A is an affidavit of due diligence from Plaintiff’s process server, which describes Plaintiff’s 20 attempt to serve Defendant Grimes before it discovered he is deceased. Exhibit 2 to Exhibit A 21 appears to be the skip trace results on Defendant Grimes. Nothing in these documents discusses 22 Plaintiff’s attempts to obtain information regarding Defendant Grimes’ heirs. Therefore, the Court 23 directs Plaintiff’s counsel to investigate the status of Defendant Grimes’ estate. If counsel is able to 24 obtain information regarding the representative of the estate or an appropriate successor, counsel 25 shall serve the notice of suggestion of death on the proper nonparty. If counsel is unable to obtain 26 27 28 1 NRS 14.040(1) states that in order for a court to grant a request to serve unknown heir or heirs by publication, the plaintiff must demonstrate “... that due diligence to ascertain the name or names and the place or places of residence of such heir or heirs has been successfully exercised by or in behalf of the plaintiff or plaintiffs ...” 2 1 this information, then she may file a new declaration in which she describes the efforts made to 2 comply with this order. Accordingly, 3 4 5 IT IS HEREBY ORDERED that Plaintiff’s Motion to Substitute (ECF No. 40) and Motion for Service by Publication (ECF No. 38) are denied, without prejudice. DATED this 19th day of September, 2017. 6 7 8 ______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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