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AMCO Insurance Co. v. Bacon

United States District Court, D. Nevada

June 2, 2017

AMCO INSURANCE COMPANY, an Iowa Corporation, Plaintiff,
v.
THOMAS BACON, an individual, MICHELE PAUNESSA-BACON, an individual, Defendants, THOMAS BACON, an individual, Counter-Claimant,
v.
AMCO INSURANCE COMPANY, an Iowa Corporation, Counter-Defendant,

          TOM LARMORE, CHRISTINE M. EMANUELSON, BRIAN PELANDA, HINES HAMPTON LLP, Attorneys for Plaintiff/Cross-Defendant AMCO INSURANCE COMPANY.

          ROBERT D. VANNAH, VANNAH & VANNAH, PAUL D. POWELL, THE POWELL LAW FIRM, Attorneys for Defendant Michele Paunessa- Bacon and Christopher L. Bacon.

          JOINT MOTION FOR AN ORDER SUBSTITUTING CHRISTOPHER L. BACON INTO THIS ACTON AS A DEFENDANT AND COUNTER-CLAIMANT IN PLACE OF THOMAS BACON [RULE 25(A)(1)]

         I. SUMMARY OF THE FACTS.

         1. Thomas Bacon, one of the Defendants and the sole Counterclaimant in this action, died on November 5, 2016.

         2. On March 7, 2017, Christopher L. Bacon filed a petition in the District Court for Clark County, Nevada to be appointed as the Special Administrator of Thomas Bacon's estate.

         3. On April 5, 2017, the District Court issued an Order granting letters of special administration for the Estate of Thomas Lee Bacon to Christopher L. Bacon. According to that Order, the District Court granted Christopher Bacon the powers enumerated in N.R.S. 140.040. A true and correct copy of the forgoing Order is attached hereto as Exhibit A.

         II. CHRISTOPHER BACON SHOULD BE SUBSTITUTED IN TO THIS ACTION.

         A. The Standard for Substitution.

         4. “If a party dies and the claim is not extinguished, the court may order substitution of the proper party.” Fed.R.Civ.P. 25(a)(1). “A motion for substitution may be made by any party or by the decedent's successor or representative.” Id. “[A] timely motion brought by the Administratrix of a deceased party is within the terms of the Rule's operation.” Boggs v. Dravo Corp., 532 F.2d 897, 900 (3d Cir. 1976). See also F.T.C. v. AMG Services, Inc., 2014 WL 2742872 at *2 (D. Nev., June 17, 2014) (holding that the executor of a deceased party's estate is a “proper party” under Rule 25).

         5. “The estate of a deceased party is not a proper party under Rule 25. . . . A proper party under Rule 25 must be a legal representative of the deceased.” Natale v. Country Ford Ltd., 287 F.R.D. 135, 137 (E.D.N.Y. 2012).

         6. Upon a substitution made under Rule 25, “[t]he substituted party steps into the same position as original party.” Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 1996).

         B. Christopher L. Bacon is a “Proper Party” to be Substituted into this Action in Place of Thomas Bacon.

         7. Under Nevada law, there are several circumstances under which a court must appoint a special administrator to collect and take charge of a decedent's estate. See N.R.S. 140.010.

         8. Under N.R.S. 140.040(2)(a), the special administrator of an estate may “maintain or defend actions and other legal ...


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