Cabela's Retail Inc v. Hawks Prairie Investment LLC

Filing 68

ORDER granting 58 Plaintiff's Motion to Substitute Cabela's Wholesale, Inc. as Plaintiff, signed by Judge Ronald B. Leighton.(DN)

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HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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Cabela’s Retail, Inc.,

CASE NO. 3:11-cv-05973-RBL

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Plaintiff,

ORDER

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v.
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Hawks Prairie Investment, LLC,
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[DKT. # 58]
Defendant.

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THIS MATTER is before the Court on Plaintiff’s Motion to Substitute Plaintiff (Dkt. #

15 58). Cabela’s Retail, Inc. and Hawks Prairie Investment, LLC contracted on November 6, 2007.
16 Def.’s Resp. at 1. (Dkt. # 60). Cabela’s Retail agreed to open a retail store on commercial
17 property owned by Hawks Prairie Investment. Id. On June 1, 2008, Cabela’s Retail, Inc. merged
18 into Cabela’s Wholesale, Inc. Pl.’s Mot. to Sub. at 1. Cabela’s Wholesale is the surviving
19 corporation of the merger and is the existing corporate entity responsible for operating the retail
20 stores, including the one at issue here. Id. Cabela’s Retail now moves pursuant to Fed. R. Civ.
21 P. 17(a)(3) to substitute Cabela’s Wholesale as the named plaintiff. Hawks Prairie Investment
22 opposes substitution because the contract at issue was with Cabela’s Retail.
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Fed. R. Civ. P. 17(a)(3) allows substitution of the real party in interest and for the action

24 to proceed as if it had been originally commenced by the real party in interest. Here, Cabela’s

ORDER - 1

1 Wholesale is the surviving entity and therefore the real party in interest. See DePinto v.
2 Provident Sec. Life Ins. Co., 323 F.2d 826, 832 (1963). Substituting Cabela’s Wholesale has no
3 affect on the factual allegations. Therefore, Plaintiff’s Motion is GRANTED and Cabela’s
4 Wholesale, Inc. is substituted as Plaintiff.
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Dated this 13th day of September, 2012.

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A

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Ronald B. Leighton
United States District Judge

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ORDER - 2