United States District Court, D. Nevada
GARY G. CAMPBELL, Plaintiff,
THE ESTATE OF LARRY WAYNE KILBURN, et. al., Defendants.
WILLIAM G. COBB, Magistrate Judge.
Before the court is Plaintiff's Motion to Substitute Personal Representative and to Amend Caption. (Doc. # 23.) Defendants have filed a response (Doc. # 26) to which Plaintiff replied. (Doc. # 28.) For the following reasons, Plaintiff's motion is GRANTED.
On the morning of September 11, 2011, the decedent Larry Wayne Kilburn ("Kilburn") was driving southbound on U.S. route 95 in Mineral County, Nevada when he allegedly veered into the oncoming traffic lane and struck Plaintiff Gary G. Campbell's vehicle. As a result of the accident, Plaintiff was seriously injured and Kilburn was killed.
On August 26, 2013, Campbell filed a complaint for negligence against the Estate of Larry Wayne Kilburn ("the Estate") in state court in Mineral County, Nevada. (Doc. # 1, Exh. 2.) On November 8, 2013, the Estate removed this action to federal court on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. # 1.)
Contemporaneous with removal of this action, a petition for administration of the Estate was filed in the State of Oregon, in which Maureen VanderMay ("VanderMay") was appointed as personal representative on October 11, 2013. Plaintiff subsequently filed an amended complaint in the present action on November 27, 2013, superseding the original complaint in its entirety, and naming VanderMay as a Defendant. (Doc. # 7.) VanderMay accepted service of Plaintiff's amended complaint on December 5, 2013. (Doc. # 21.)
Upon learning the true identity of Kilburn's closest living relative, VanderMay filed a motion to substitute personal representative and to relieve her of the duties as personal representative in the Oregon probate proceeding. On April 18, 2014, the circuit court in the State of Oregon entered an order removing VanderMay as personal representative of Kilburn's Estate, and naming Kilburn's daughter, Heather Garcia ("Garcia"), as the successor personal representative of her father's estate. (Doc. # 23-1, Exh. 1.)
Thereafter, Plaintiff filed the present motion for substitution and to amend the caption. (Doc. # 23.)
II. LEGAL STANDARD
Federal Rule of Civil Procedure 25(c) provides that "[i]f an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party."
In In re Bernal, the Ninth Circuit quotes a treatise that states:
The most significant feature of Rule 25(c) is that it does not require that anything be done after an interest has been transferred. The action may be continued by or against the original party, and the judgment will be binding on his successor in interest even though he is not named. An order of joinder is merely a discretionary determination by the trial court that the transferee's presence would facilitate the conduct of the litigation.
207 F.3d 595, 598 (9th Cir.2000) (quoting 7C Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1958 (2d Ed.1986)). It is thus clear that Rule 25 leaves the substitution decision to the trial court's sound discretion. Id.
Under Nevada law, no action to which a personal representative is a party abates by reason of resignation or removal of the personal representative, but the person who is appointed, qualifies and is acting as the successor must, upon motion, be ...