Macias v. State of Nevada ( 2024 )

JAMES D. URRUTIA, ESQ. 2 || Nevada Bar No. 12885 3 LJU LAW FIRM 7575 Vegas Drive, Suite 100 4 || Las Vegas, NV 89128 5 T: (702) 707-9433 F: (702) 702-2194 6 || James@TheLJU.com 7 Counsel for Plaintiff U.S. DISTRICT COURT 9 DISTRICT OF NEVADA 10 || FRANK MACIAS, CASENO.: □□□□□□□□□□□□□□□□□□□□□□ So Plaintiff, 12 8 |) vs Zo STATE OF NEVADA, et al., 15 Defendants. 16 17 ORDER GRANTING 18 RENEWED MOTION TO SUBSTITUTE PARTY 2S 19 COMES NOW, Plaintiff, FRANK MACIAS, by and through his counsel of record, JAME: oO tC 5 Q 20 | D. URRUTIA, ESQ, of LJU LAW FIRM, and renews his motion for an Order from the Court 71 pursuant to N.R.C.P. Rule 25(a)(1), allowing substitution of the deceased Defendant, GREGOR‘ > 22 wn MARTIN for his estate. ‘a 23 As to his individual capacity, Plaintiff has identified a successor and serves same with thi 5 || motion. Defendant, although unable to stipulate, informed Plaintiff that it would not oppose thi 26 || motion. See Email, “In doing so, I would not oppose such a motion to substitute Gregory Martin’ 27 || estate in his personal capacity.”, attached hereto as Exhibit 1. Therefore, the Motion should b 28 |! considered unopposed and should be granted. According to Local Rule IA 6-2, Plaintiff provide an Order for signature at the end of this motion. 1] This Motion is made and based upon the pleadings and papers on file herein, the Points an 2 Authorities attached hereto, and oral argument of counsel at the time this Motion is heard. MEMORANDUM OF POINTS AND AUTHORITIES 5 1. Relevant Facts and Procedural History 6 1. On March 22, 2023, Defendants provided notice to the Court that, pursuant to Rul 7 |} 25(a)(1) of the Federal Rules of Civil Procedure, Defendant, Gregory Martin, passed away on o 8 || about November 12, 2022. (ECF No. 79.) ? 2. Plaintiff moved to substitute party on May 26, 2023. (ECF No. 80.) 6 ‘0 3. In an Order entered on July 12, 2023, the Court directed the AG’s Office t 2 undertake effort to ascertain whether there is an estate for defendant Martin. [ECF No. 83]. 8 a 13 4. On August 11, 2023, the AG’s office filed a Declaration concerning its efforts t 2: 14 |] comply with Order ECF 83. (ECF No. 86). In the Declaration the AG, stated: “I have not discovere 3 15 || representative of the estate or a successor to the estate, as it appears no interested person has opene 8 = 16}, probate estate pursuant to NRS 136.070.” (ECF No. 86, pg 2, paragraph) = 5. Counsel for Plaintiff was appointed as Pro Bono Counsel on January 24, 2024. a 19 6. Through the end of 2023 and throughout 2024, Counsel for Plaintiff has discusse 20 the matter various times with Counsel for Defendant. See Declaration of James D. Urrutia, attache op: = 21 || hereto as Exhibit 2. 22 7. On July 12, 2024, after a telephone conference with the AG’s office over Defendan 23 Gregory Martin’s Estate and Special Administrator, Plaintiff was able to locate a similar matte 24 Brass v. Daniels, 2:21-CV-00074-RFB-MDC (D. Nev. July 2, 2024), in which the AG’s office wa able to successful locate the Defendant’s Estate. 17 8. Shortly thereafter Plaintiff forwarded a draft Stipulation to substitute Mary Lefler a 28 || the Special Administrator for the Estate of Gregory Martin, deceased for Defendant Gregory □□□□□□ 9. On August 9, 2024, for the first ttme, Defendant informed Plaintiff that it would nc stipulate to a substitution, but that Plaintiff would have to file a motion. Counsel for Defendant di state that he would not oppose the Motion. (Exhibit 1) | Il. Standard of Review 3 The Ninth Circuit Court of Appeals will review the decision to allow substitution under Fed 4 R. Civ. P. 25 for an abuse of discretion. LVN Mgmt, LLC v. JPMorgan Chase Bank, N.A., 957 F.3: 6 943, 949 (9th Cir. 2020) (citing Jn re Bernal, 207 F.3d 595, 598 (9th Cir. 2000); and Charles \ 7 || Burton, 169 F.3d 1322, 1327 n.6 (11th Cir. 1999)). ? Ill. Legal Argument 10 oe = 1] A. The Court Should Permit Substitution of Defendant Martin for His Estate 12 3 t FRCP 25(a) permits substitution of the estate of a party after the death of that party. The >2 43 on A. 14 || claim against Martin is not extinguished by his death. Generally, the law of the forum state Sa 13 |! determines whether a Section 1983 action survives or is extinguished upon the death of a party. See 16 de 7 42 U'S.C. § 1988(a); see also Robertson v. Wegmann, 436 U.S. 584, 588-89 (1978). Nevada law — S 18 || provides: “Except as otherwise provided in this section, no cause of action is lost by reason of the S 19 |! death of any person, but may be maintained by or against the person's executor or administrator.” 20 A = 54 NRS 41.100(1). “In an action against an executor or administrator, any damages may be awarded S 22 || which would have been recovered against the decedent if the decedent had lived, except damages 23 |! awardable under NRS 42.005 or 42.010 or other damages imposed primarily for the sake of example 24 35 or to punish the defendant.” NRS 41.100(2). Here, recently discovered by Plaintiff is a special administrator for the estate of Defendant Martin. Plaintiff thus moves the court to substitute 26 27 || Defendant Martin, deceased, for Mary Lefler as the Special Administrator for the Estate of Gregory 28 Martin. The new caption of this case is attached hereto as Exhibit 3. CONCLUSION 2 Plaintiff's respectfully request that the Court order the substitution of Mary Lefler as th 4 Special Administrator for the Estate of Gregory Martin, deceased. As a result, the caption in thi 5 matter should be amended as described in Exhibit 3. 4 Dated this 14th day of August, 2024. g LJU LAW FIRM 10 /s/ James D. Urrutia 26 JAMES D. URRUTIA, ESQ. LJU LAW FIRM 12 7575 Vegas Drive, Suite 100 ea Las Vegas, NV 89128 nN 13 Counsel for Plaintiff, FRANK MACIAS 14 no Sp 15 IT IS ORDERED that Mary Lefler, as the Special Administrator for the Estate of Gregory > S Martin, is substituted in place of Defendant Gregory Martin. 16 17 IT IS FURTHER ORDERED that the Estate of Gregory Martin shall served within sixty Son (60) days of this Order. 18 At 19 CRAIG S. DENNEY om UNITED STATES GISTRATE JUDGE Ea 20 2) DATED: August 29, 2024 > 22 WZ ‘a 23 tC 24 25 26 27 28 EXHIBIT 3 JAMES D. URRUTIA, ESQ. 2 || Nevada Bar No. 12885 3 LJU LAW FIRM 7575 Vegas Drive, Suite 100 4 || Las Vegas, NV 89128 5 T: (702) 707-9433 F: (702) 702-2194 6 || James@TheLJU.com 7 Counsel for Plaintiff DISTRICT COURT 9 CLARK COUNTY, NEVADA 10 ||) FRANK MACIAS, CASENO.: 3:19-cv-00310-ART-CSD 11 ue a Plaintiff, 12 8 |] VS zo MARY LEFLER tthe Special 15 Administrator for the Estate of Gregory > S Martin, deceased, CORY ROWLEY; 8 16 || GLORIA CARPENTER, 17 SF wm Defendants. 18 2S 19 8 20 21 > 22 WZ a 23 tC 24 25 26 27 28