United States of America v. Canaday

Filing 79

MEMORANDUM OPINION AND ORDER: Based on the representations of the United States, the court declines to vacate its earlier 75 order granting the motion to substitute. Therefore, there is no reason to enter the Agreed Order to Substitute and the gove rnment's 77 motion to that effect is DENIED as moot. If it later comes to the court's attention that either a party or nonparty did not receive the notice required by Rule 25, the court will revisit its order of substitution. Signed by Senior Judge David A. Faber on 9/18/2017. (cc: counsel of record and unrepresented parties) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
UNITED STATES OF AMERICA,
Plaintiff,
v.

CIVIL ACTION NO. 1:14-27450

TIMOTHY W. CANADAY, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff filed a motion to substitute T.A. Bailey, as
representative of the Estate of Timothy W. Canaday, as a party in
this action for the deceased defendant, Timothy W. Canaday.

In

so doing and as contemplated by Federal Rule of Civil Procedure
25(a)(3), plaintiff filed a Notice of Hearing on that motion for
July 25, 2017.

By Memorandum Opinion and Order entered on June

29, 2017, the court granted the motion to substitute.

Because

the court was concerned that it had granted the motion to
substitute prematurely, as a hearing appears to be contemplated
by Rule 25(a)(3), the court scheduled a hearing on the motion to
substitute for Tuesday, August 15, 2017, at 10:30 a.m., in
Bluefield.

By Order entered on August 4, 2017, that hearing was

continued until further order of the court.
On August 3, 2017, the United States filed a Motion to
Enter Agreed Order to Substitute Party.

(ECF No. 77).

According

to that motion, the United States has given the notices required
by Federal Rule of Civil Procedure 25; that T.A. Bailey is the

only nonparty entitled to service; that T.A. Bailey has waived
service of the motion; and that T.A. Bailey has agreed to his
substitution as a party herein, as the representative of the
Estate of Timothy W. Canaday.
Based on the representations of the United States, the
court declines to vacate its earlier order granting the motion to
substitute.

(ECF No. 75).

Therefore, there is no reason to

enter the Agreed Order to Substitute and the government’s motion
to that effect, ECF No. 77, is DENIED as moot.

If it later comes

to the court’s attention that either a party or nonparty did not
receive the notice required by Rule 25, the court will revisit
its order of substitution.

See F.D.I.C. v. Harger, 778 F.

Supp.2d 1123, 1133-34 (D.N.M. 2011).
The Clerk is directed to send a copy of this Memorandum
Opinion and Order to counsel of record and unrepresented parties.
IT IS SO ORDERED this 18th day of September, 2017.
ENTER:
David A. Faber
Senior United States District Judge

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