Harco National Insurance Company v. Ackerman et al

Filing 41

ORDER. IT IS ORDERED that plaintiff's motion (ECF No. 28 ) is GRANTED. The Clerk of Court is kindly directed to detach and separately docket ECF No. 28-2 as an amended complaint. IT IS FURTHER ORDERED that the June 4, 2021 hearing is VACATED. Signed by Magistrate Judge Brenda Weksler on 6/3/2021. (Copies have been distributed pursuant to the NEF - HAM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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Harco National Insurance Company,
Plaintiff,

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Case No. 2:20-cv-01208-RFB-BNW
Order re [28]

v.
Andrew Ackerman, et al.,
Defendants.

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Before the Court is plaintiff Harco National Insurance Company's renewed motion to
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Substitute Party. ECF No. 28. Defendants Andrew Ackerman, Silver State Ford, and Valley
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Automotive Group oppose. ECF No. 30. Plaintiff replied at ECF No. 31.
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Harco seeks to substitute the administrator of Wilson's estate in place of Wilson. The
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Court had previously denied plaintiff’s request and explained that plaintiff had not identified the

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proper party for substitution. ECF No. 24 at 2–3. Plaintiff has since cured this deficiency. As a
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result, the Court will grant plaintiff's motion. Further, the Court vacates tomorrow's hearing
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because it finds that plaintiff's motion is fit for resolution without oral argument. See LR 78-1
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("All motions may be considered and decided with or without a hearing.").
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Analysis
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Rule 25(a) provides that “[i]f a party dies and the claim is not extinguished, the court may
order substitution of the proper party.” Fed. R. Civ. P. 25(a)(1). A motion to substitute can be
made “by any party or by the decedent’s successor or representative.” Id. The motion, “together
with a notice of hearing,” must be served on parties in accordance with Rule 5 and on nonparties

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in accordance with Rule 4. Fed. R. Civ. P. 25(a)(3).
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To resolve a motion under Rule 25(a)(1), the Court must consider three substantive
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requirements: (1) whether the motion is timely; (2) whether the claims pled are not extinguished;
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and (3) whether the person being substituted is a proper party. City of Colton v. Am. Promotional

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Events, Inc., 2014 WL 12740637, at *2 (C.D. Cal. Apr. 15, 2014). If these three substantive

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requirements are met, and if the movant served its motion and notice of hearing upon the proper

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party in accordance with Rule 25(a)(3), then the proper party steps into the shoes of the decedent.

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Id.

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Plaintiff has met all requirements under the rule. First, the motion is timely. A Rule 25(a)

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motion must be "made within 90 days after service of a statement noting the death," otherwise the

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action by or against the decedent must be dismissed. Fed. R. Civ. P. 25(a)(1). Here, no suggestion

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of death has been filed in this action and, therefore, the 90-day time limitation has not been

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triggered. Gilmore v. Lockard, 936 F.3d 857, 865 (9th Cir. 2019).
As to the second requirement, the claims pled are not extinguished. Wilson is not bringing

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any claims in this case. Rather, she was named as a party because she may have an interest in the

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outcome of the salient insurance coverage issues, given her status as the plaintiff in the

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underlying tort action in state court. In other words, Wilson’s death has no bearing on the

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substantive adjudication of the issues in this action, and there is no “extinguishment” that would

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preclude the substitution of the special administrator of her estate as a party.

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As to the third requirement, Alan MacIntosh was appointed as special administrator of

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Wilson’s estate. ECF No. 28-1. Under Rule 25(a), "an executor or administrator . . . is a proper

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party for substitution of a deceased party," City of Colton, 2014 WL 12740637 at *3, so

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MacIntosh is a proper party to be substituted in place of Wilson for purposes of this action.

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Accordingly, Harco has met the three substantive requirements. Further, MacIntosh

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accepted personal service of the motion several months ago, and he chose not to respond. ECF

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No. 29. Later, MacIntosh again accepted service of the motion, together with the Court's order

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setting Harco's motion for hearing. ECF No. 40. An acceptance of service is consistent with

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service under Rule 4. See Fed. R. Civ. P. 4(e)(2)(A). Therefore, Harco served its motion,

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"together with a notice of hearing," on nonparty MacIntosh "as provided in Rule 4." See Fed. R.

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Civ. P. 25(a)(3).

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As stated, Harco's motion is opposed by defendants Andrew Ackerman, Silver State Ford,

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and Valley Automotive Group. ECF No. 30. The defendants' response focuses on Harco's request

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to extend the time for service. Id. at 2. However, the Court has already considered these

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arguments, rejected these arguments, and extended the time for service on the basis of good

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cause. ECF No. 37. To the extent these defendants assert these prior arguments against Harco's

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substitution request, these arguments are again rejected because Harco has met the procedural and

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substantive requirements for substitution. Further, the filing of a dispositive motion is not—at

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least in this context—a basis to deny a Rule 25(a) motion, particularly where the substitution of

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Wilson's estate in Wilson's stead will have no bearing on the substance of the defendants'

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dispositive motion.
Conclusion

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IT IS THEREFORE ORDERED that plaintiff's motion (ECF No. 28) is GRANTED.

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The Clerk of Court is kindly directed to detach and separately docket ECF No. 28-2 as an

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amended complaint.

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IT IS FURTHER ORDERED that the June 4, 2021 hearing is VACATED.

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DATED: June 3, 2021.

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BRENDA WEKSLER
UNITED STATES MAGISTRATE JUDGE

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