Kroshus et al v. United States of America, et al

Filing 123

ORDER GRANTING 120 Motion to Dismiss. IT IS ORDERED, in accordance with Rule 25(a), the claims of plaintiff Lorilee Babock are hereby dismissed. Signed by Judge Lloyd D. George on 7/9/2010. (Copies have been distributed pursuant to the NEF - KO)

alKroshus et

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DANIEL G. BOGDEN United States Attorney GREG ADDINGTON Nevada Bar No. 6875 Assistant United States Attorney 100 West Liberty, Suite 600 Reno, Nevada 89501 Tel.: [phone] Fax: [phone] UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ______________________________) ) JUDY KROSHUS, et al., ) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA, et ) al., ) ) Defendants. ) ______________________________) ) BILL ADAMSON et al., ) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ______________________________) BILL ADAMSON et al.,

3:08-cv-621-LDG-RAM UNITED STATES' MOTION TO DISMISS CLAIMS OF LORILLEE BABCOCK

3:09-cv-713-LDG-RAM FEDERAL DEFENDANTS' MOTION TO DISMISS CLAIMS OF LORILLEE BABCOCK

3:09-cv-715-LDG-RAM UNITED STATES' MOTION TO DISMISS CLAIMS OF LORILLEE BABCOCK

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The federal defendants in these related actions, through their undersigned counsel, move this Court for dismissal of the claims brought by plaintiff LORILLEE BABCOCK pursuant to Rules 7(b) and 25(a), Fed.R.Civ.P. The grounds for this motion are that plaintiff Lorillee Babcock died in November 2009, a suggestion of death was filed on

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Respectfully submitted, DANIEL G. BOGDEN United States Attorney /s/ Greg Addington GREG ADDINGTON Assistant United States Attorney March 19, 2010, no substitution of a personal representative or other successor has been made, and this action must be dismissed in accordance with Rule 25(a)(1). This motion is based on the papers and pleadings filed in this action and the accompanying memorandum of law.

1 2 3 4 5 6 7 8 9 10 11 12 A.

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS CLAIMS OF LORILLEE BABCOCK INTRODUCTION Lorillee Babcock is a plaintiff in each of these three related actions arising from the January 2008 Truckee Canal embankment failure in Fernley, Nevada. In "Adamson I" (3:08-cv-

621) and "Adamson II" (3:09-cv-715), plaintiff Babcock is one of many plaintiffs seeking recovery of tort damages against the United States. In "Kroshus II" (3:09-cv-713), plaintiff Babcock

is one of many plaintiffs seeking judicial review of the decision by the Bureau of Reclamation to permit limited resumption of water flows in the canal following the repair of the breach

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site.1 In November 2009, plaintiff Babcock died. On March 19,

2010, the federal defendants filed a Suggestion of Death on the Record (#81 - Adamson I; #37 - Adamson II; #77 - Kroshus II) in accordance with Rule 25(a)(1), Fed.R.Civ.P. The 90-day deadline imposed by Rule 25(a)(1) has expired and no substitution of a personal representative or other successor has been made. Accordingly, this action must be dismissed by the

plain terms of Rule 25(a)(1).

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Plaintiff Babcock is not a plaintiff in "Kroshus I" (3:08-cv-246), an action which seeks the same relief as that sought in "Kroshus II." The federal defendants have filed their motion for summary judgment in "Kroshus I" and "Kroshus II," which motions are pending. Multiple motions are pending in "Adamson II." The current motion does not affect the viability of any other pending motions. 3

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B. ARGUMENT Rule 25(a)(1), Fed.R.Civ.P., provides a mechanism for substitution of a successor when a party dies during the course of litigation and the litigation is not automatically extinguished by the death. If the claim is not automatically

extinguished, a motion for substitution must be filed "within 90 7 8 9 10 11 12 13 14 15 16 17 18 must be dismissed" by the plain terms of the operative Rule 19 20 21 22 23 24 25 26 27 28 4 25(a)(1). See Hofheimer v. McIntee, 179 F.2d 789 (7th Cir. 1950); see also Patrick v. Sharon Steel Corp., 549 F.Supp. 1259 (W.Va. 1982). days after service of a statement noting the death..." If such a motion for substitution is not filed within the 90-day time period, "the action by or against the decedent must be dismissed." See Rule 25(a)(1).

On March 19, 2010, the federal defendants filed a Suggestion of Death on the Record in each of the three cases in which decedent Lorillee Babcock is a plaintiff. The 90-day deadline has expired for the filing of a motion for substitution of a successor to Babcock and no such motion has been filed. Accordingly, this action "by or against the decedent [Babcock]

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C.

CONCLUSION Based on the foregoing, the claims of plaintiff Lorilee

Babcock must be dismissed in accordance with Rule 25(a), Fed.R.Civ.P.

Respectfully submitted, 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 IT IS SO ORDERED. DATED this ____ day of July, 2010. ___________________________________ Lloyd D. George Sr. U.S. District Judge ORDER DANIEL G. BOGDEN United States Attorney /s/ Greg Addington GREG ADDINGTON Assistant United States Attorney