Macias v. State of Nevada et al

Filing 92

ORDER granting 91 Motion to Substitute Party : IT IS ORDERED that Mary Lefler, as the Special Administrator for the Estate of Gregory Martin, is substituted in place of Defendant Gregory Martin. IT IS FURTHER ORDERED that the Estate of Gregory Martin shall be served within sixty (60) days of this Order (10/28/2024). Signed by Magistrate Judge Craig S. Denney on 8/29/2024. (Copies have been distributed pursuant to the NEF - DRM)

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JAMES D. URRUTIA, ESQ.
Nevada Bar No. 12885
LJU LAW FIRM
7575 Vegas Drive, Suite 100
Las Vegas, NV 89128
T: [phone]
F: [phone]
[e-mail]
Counsel for Plaintiff

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DISTRICT OF NEVADA

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LJU LAW FIRM
7575 Vegas Drive, Suite 100, Las Vegas, Nevada 89128
T: [phone] | F: [phone]

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FRANK MACIAS,

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U.S. DISTRICT COURT

CASE NO.:

3:19-cv-00310-ART-CSD

Plaintiff,
vs.
STATE OF NEVADA, et al.,
Defendants.
ORDER GRANTING
RENEWED MOTION TO SUBSTITUTE PARTY

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COMES NOW, Plaintiff, FRANK MACIAS, by and through his counsel of record, JAMES

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D. URRUTIA, ESQ, of LJU LAW FIRM, and renews his motion for an Order from the Court,

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pursuant to N.R.C.P. Rule 25(a)(1), allowing substitution of the deceased Defendant, GREGORY
MARTIN for his estate.
As to his individual capacity, Plaintiff has identified a successor and serves same with this

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motion. Defendant, although unable to stipulate, informed Plaintiff that it would not oppose this

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motion. See Email, “In doing so, I would not oppose such a motion to substitute Gregory Martin’s

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estate in his personal capacity.”, attached hereto as Exhibit 1. Therefore, the Motion should be

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considered unopposed and should be granted. According to Local Rule IA 6-2, Plaintiff provides
an Order for signature at the end of this motion.

Page 1 of 5

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This Motion is made and based upon the pleadings and papers on file herein, the Points and

Authorities attached hereto, and oral argument of counsel at the time this Motion is heard.
MEMORANDUM OF POINTS AND AUTHORITIES
I.

Relevant Facts and Procedural History

1.

On March 22, 2023, Defendants provided notice to the Court that, pursuant to Rule

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25(a)(1) of the Federal Rules of Civil Procedure, Defendant, Gregory Martin, passed away on or

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about November 12, 2022. (ECF No. 79.)

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LJU LAW FIRM
7575 Vegas Drive, Suite 100, Las Vegas, Nevada 89128
T: [phone] | F: [phone]

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2.

Plaintiff moved to substitute party on May 26, 2023. (ECF No. 80.)

3.

In an Order entered on July 12, 2023, the Court directed the AG’s Office to

undertake effort to ascertain whether there is an estate for defendant Martin. [ECF No. 83].
4.

On August 11, 2023, the AG’s office filed a Declaration concerning its efforts to

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comply with Order ECF 83. (ECF No. 86). In the Declaration the AG, stated: “I have not discovered

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a representative of the estate or a successor to the estate, as it appears no interested person has opened

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a probate estate pursuant to NRS 136.070.” (ECF No. 86, pg 2, paragraph)

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5.

Counsel for Plaintiff was appointed as Pro Bono Counsel on January 24, 2024.

6.

Through the end of 2023 and throughout 2024, Counsel for Plaintiff has discussed

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the matter various times with Counsel for Defendant. See Declaration of James D. Urrutia, attached

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hereto as Exhibit 2.

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7.

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On July 12, 2024, after a telephone conference with the AG’s office over Defendant

Gregory Martin’s Estate and Special Administrator, Plaintiff was able to locate a similar matter
Brass v. Daniels, 2:21-CV-00074-RFB-MDC (D. Nev. July 2, 2024), in which the AG’s office was
able to successful locate the Defendant’s Estate.
8.

Shortly thereafter Plaintiff forwarded a draft Stipulation to substitute Mary Lefler as

the Special Administrator for the Estate of Gregory Martin, deceased for Defendant Gregory Martin.
9.

On August 9, 2024, for the first time, Defendant informed Plaintiff that it would not

stipulate to a substitution, but that Plaintiff would have to file a motion. Counsel for Defendant did
state that he would not oppose the Motion. (Exhibit 1)
Page 2 of 5

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II.

Standard of Review

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The Ninth Circuit Court of Appeals will review the decision to allow substitution under Fed.
R. Civ. P. 25 for an abuse of discretion. LN Mgmt., LLC v. JPMorgan Chase Bank, N.A., 957 F.3d
943, 949 (9th Cir. 2020) (citing In re Bernal, 207 F.3d 595, 598 (9th Cir. 2000); and Charles v.
Burton, 169 F.3d 1322, 1327 n.6 (11th Cir. 1999)).

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LJU LAW FIRM
7575 Vegas Drive, Suite 100, Las Vegas, Nevada 89128
T: [phone] | F: [phone]

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III.

Legal Argument

A. The Court Should Permit Substitution of Defendant Martin for His Estate
FRCP 25(a) permits substitution of the estate of a party after the death of that party. The

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claim against Martin is not extinguished by his death. Generally, the law of the forum state

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determines whether a Section 1983 action survives or is extinguished upon the death of a party. See

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42 U.S.C. § 1988(a); see also Robertson v. Wegmann, 436 U.S. 584, 588-89 (1978). Nevada law

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provides: “Except as otherwise provided in this section, no cause of action is lost by reason of the

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death of any person, but may be maintained by or against the person's executor or administrator.”

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NRS 41.100(1). “In an action against an executor or administrator, any damages may be awarded

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which would have been recovered against the decedent if the decedent had lived, except damages

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awardable under NRS 42.005 or 42.010 or other damages imposed primarily for the sake of example

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or to punish the defendant.” NRS 41.100(2). Here, recently discovered by Plaintiff is a special

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administrator for the estate of Defendant Martin. Plaintiff thus moves the court to substitute

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Defendant Martin, deceased, for Mary Lefler as the Special Administrator for the Estate of Gregory

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Martin. The new caption of this case is attached hereto as Exhibit 3.

Page 3 of 5

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CONCLUSION
Plaintiff’s respectfully request that the Court order the substitution of Mary Lefler as the
Special Administrator for the Estate of Gregory Martin, deceased. As a result, the caption in this
matter should be amended as described in Exhibit 3.
Dated this 14th day of August, 2024.
LJU LAW FIRM

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LJU LAW FIRM
7575 Vegas Drive, Suite 100, Las Vegas, Nevada 89128
T: [phone] | F: [phone]

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/s/ James D. Urrutia
JAMES D. URRUTIA, ESQ.
LJU LAW FIRM
7575 Vegas Drive, Suite 100
Las Vegas, NV 89128
Counsel for Plaintiff, FRANK MACIAS
IT IS ORDERED that Mary Lefler, as the Special Administrator for the Estate of Gregory
Martin, is substituted in place of Defendant Gregory Martin.
IT IS FURTHER ORDERED that the Estate of Gregory Martin shall be served within sixty
(60) days of this Order.
CRAIG S. DENNEY
UNITED STATES MAGISTRATE JUDGE
August 29, 2024
DATED: _________________

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Page 4 of 5

EXHIBIT 3

Case 3:19-cv-00310-ART-CSD Document 91 Filed 08/14/24 Page 13 of 13

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JAMES D. URRUTIA, ESQ.
Nevada Bar No. 12885
LJU LAW FIRM
7575 Vegas Drive, Suite 100
Las Vegas, NV 89128
T: [phone]
F: [phone]
[e-mail]
Counsel for Plaintiff

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CLARK COUNTY, NEVADA

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LJU LAW FIRM
7575 Vegas Drive, Suite 100, Las Vegas, Nevada 89128
T: [phone] | F: [phone]

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FRANK MACIAS,

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DISTRICT COURT

CASE NO.:

Plaintiff,
vs.
MARY
LEFLER
as
the
Special
Administrator for the Estate of Gregory
Martin, deceased, CORY ROWLEY;
GLORIA CARPENTER,
Defendants.

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3:19-cv-00310-ART-CSD