C. William Margrabe New York Bar No. 5017710, Admitted Pro Hac Vice Lorrette Fisher New York Bar No. 5263934, Admitted Pro Hac Vice 1015 Locust Street, Suite 1200 St. Louis, MO 63101 wmargrabe@mrhfmlaw.com lfisher@mrhfmlaw.com Phone: (800) 358-5922 / Fax: (314) 241-4838 Attorneys for Jordan J. Potter
Lawrence E. Mittin, Esq. Nevada Bar No. 005428 501 S. 8th Street Las Vegas, NV 89101 Phone: (702) 380-2800 / Fax: (702) 380-2833 lmittin@cpklaw.com
FOR THE DISTRICT OF NEVADA JORDAN J. POTTER, CASE NO.: 2:20-CV-00276-RFB-VCF Plaintiff, PLAINTIFF’S MOTION TO EXTEND THE TIME TO FILE A MOTION FOR v. SUBSTITUTION OF PARTY (First Request) CRANE CO., et al., Defendants.
JAMES POTTER, as an anticipated administrator and legal representative of the Estate of Jordan Potter, by and through undersigned counsel1 and pursuant to Fed. R. Civ. P. 6(b)(1)(A) and LR 7-2, respectfully submits this motion so as to extend the time within which Plaintiff(s) must
1 This motion is also filed by counsel on behalf of the decedent Jordan Potter. As explained more fully below, it is anticipated that James Potters’ wife and the decedent’s mother, June Potter, may also be appointed as a legal representative of the decedent’s estate. file a motion under Fed. R. Civ. P. 25(a)(1) to substitute a party for the now-deceased Plaintiff Jordan Potter. In support, it is hereby stated as follows: 1. Plaintiff, Jordan Potter, passed away suddenly on February 26, 2022. See Plaintiff’s Statement of Death, Dkt. 442. 2. Jordan, who died intestate, was unmarried at the time of his passing and leaves behind a
minor child. 3. Probate proceedings are anticipated to be initiated by the decedent’s parents, James and June Potter, and it is anticipated that they will be appointed as Administrators of the Estate. 4. Counsel for the decedent, Jordan Potter, informed the Court and the remaining Defendants in this case of Jordan’s passing both by the filing of the Statement of Death on March 22, 2022, and at a hearing and conference held by the Court on April 26, 2022. See Minutes of Proceedings, Dkt. 445. 5. This Motion is being filed in an abundance of caution before the expiration of the 90-day period following the filing of a Notice of Death within which a party can move to substitute
the now-deceased Plaintiff with a proper legal representative; and Movant’s Counsel will supplement this Motion with copies of the Letter of Administration upon receipt. 6. Pursuant to the Court’s directive to the parties during the April 26, 2022 hearing and conference, Plaintiff’s counsel has conferred with counsel for Defendants on this Motion and shows that certain Defendants are opposed to some portions of the relief sought.2 7. A proposed Order granting the relief requested is attached.
2 Counsel for Defendants Industrial Manufacturing Company and Arrowhead Products consented to the extension of time within which to substitute the plaintiff in principle, but did not agree to an extension of time until October 10, 2022. FRCP 25(a)(1) provides as follows: (a) Death. (1) Substitution if the Claim Is Not Extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made
within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed. Plaintiff filed a Statement of Death on March 22, 2022 wherein the Court and the parties were formally notified of the original plaintiff Jordan Potter’s death. Jordan Potter’s claims were not extinguished by his death. (See e.g. NRS § 41.100 which provides that “no cause of action is lost by reason of the death of any person, but may be maintained by or against the person's executor or administrator;” see also NRS § 41.085, which provides that the official representatives and heirs of a decedent have a right to bring a wrongful death cause of action). Thus, pursuant to FRCP 25, the action will be dismissed unless a motion for substitution
of plaintiff is filed on or before June 22, 2022 (i.e. 90 days following the filing of the statement of death). When the Statement of Death was filed, no administrator or other legally recognized representative of the decedent Jordan Potter’s estate had been appointed, and it was uncertain who would be appointed. The same remains true to date but as per the decedent’s adoptive father, James Potter, the decedent’s parents are seeking to commence a legal action on the appropriate probate court to have an administrator appointed. Upon that legal representative’s appointment, that person is to be substituted in as plaintiff so that Jordan’s claims and the interests of his estate, and his heirs (which include a minor child), can be properly and fully represented. FRCP 6 is the appropriate vehicle through which to seek an extension of the FRCP 25 deadlines. See e.g. Zanowick v. Baxter Healthcare Corp., 850 F.3d 1090, 1094 (9th Cir. 2017) (Rule 25’s “90-day deadline may be extended by Rule 6(b) ... Rule 6(b) ‘works in conjunction with Rule 25(a)(1) to provide the intended flexibility in enlarging the time for substitution.’” [internal citations omitted]. Thus, the motion herein is proper.
WHEREFORE, movant respectfully moves this Court for an Order extending the time within which to file a motion to substitute the decedent Jordan Potter as plaintiff until October 10, 2022. MAUNE RAICHLE HARTLEY FRENCH & MUDD LLC
By: C. William Margrabe C. William Margrabe New York Bar No. 5017710, Admitted Pro Hac Vice Lorrette Fisher New York Bar No. 5263934, Admitted Pro Hac Vice 1015 Locust Street, Suite 1200 St. Louis, MO 63101 wmargrabe@mrhfmlaw.com lfisher@mrhfmlaw.com Phone: (800) 358-5922 / Fax: (314) 241-4838 Attorneys for Plaintiff
And
Lawrence E. Mittin, Esq. Nevada Bar No. 005428 501 S. 8th Street Las Vegas, NV 89101 (702) 380-2800 Fax: (702) 380-2833 lmittin@cpklaw.com Attorneys for Plaintiff FOR THE DISTRICT OF NEVADA JORDAN J. POTTER, CASE NO.:: 2:20-CV-00276-RFB-VCF Plaintiff, [PROPOSED] STIPULATED ORDER GRANTING PLAINTIFF’S MOTION Vv. TO EXTEND THE TIME TO FILE A MOTION FOR SUBSTITUTION OF CRANE CoO., et al., PARTY (First Request) Defendants. THIS MATTER comes before the Court on Plaintiff's Motion to Extend the Time to File
2 Motion for Substitution of Party pursuant to Fed. R. Civ. P. 6(6)(1)(A) and LR 7-2.
IT IS THEREFORE ORDERED that Plaintiff?s Motion to Extend the Time to File a
Motion for Substitution of Party is GRANTED.
IT IS SO ORDERED:
RICHA A<- ARE, Il United States District Court DATED this 26th day of May, 2022.
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C. William Margrabe New York Bar No. 5017710, Admitted Pro Hac Vice Lorrette Fisher New York Bar No. 5263934, Admitted Pro Hac Vice 1015 Locust Street, Suite 1200 St. Louis, MO 63101 wmargrabe@mrhfmlaw.com lfisher@mrhfmlaw.com Phone: (800) 358-5922 / Fax: (314) 241-4838 Attorneys for Jordan J. Potter
Lawrence E. Mittin, Esq. Nevada Bar No. 005428 501 S. 8th Street Las Vegas, NV 89101 Phone: (702) 380-2800 / Fax: (702) 380-2833 lmittin@cpklaw.com
FOR THE DISTRICT OF NEVADA JORDAN J. POTTER, CASE NO.: 2:20-CV-00276-RFB-VCF Plaintiff, PLAINTIFF’S MOTION TO EXTEND THE TIME TO FILE A MOTION FOR v. SUBSTITUTION OF PARTY (First Request) CRANE CO., et al., Defendants.
JAMES POTTER, as an anticipated administrator and legal representative of the Estate of Jordan Potter, by and through undersigned counsel1 and pursuant to Fed. R. Civ. P. 6(b)(1)(A) and LR 7-2, respectfully submits this motion so as to extend the time within which Plaintiff(s) must
1 This motion is also filed by counsel on behalf of the decedent Jordan Potter. As explained more fully below, it is anticipated that James Potters’ wife and the decedent’s mother, June Potter, may also be appointed as a legal representative of the decedent’s estate. file a motion under Fed. R. Civ. P. 25(a)(1) to substitute a party for the now-deceased Plaintiff Jordan Potter. In support, it is hereby stated as follows: 1. Plaintiff, Jordan Potter, passed away suddenly on February 26, 2022. See Plaintiff’s Statement of Death, Dkt. 442. 2. Jordan, who died intestate, was unmarried at the time of his passing and leaves behind a
minor child. 3. Probate proceedings are anticipated to be initiated by the decedent’s parents, James and June Potter, and it is anticipated that they will be appointed as Administrators of the Estate. 4. Counsel for the decedent, Jordan Potter, informed the Court and the remaining Defendants in this case of Jordan’s passing both by the filing of the Statement of Death on March 22, 2022, and at a hearing and conference held by the Court on April 26, 2022. See Minutes of Proceedings, Dkt. 445. 5. This Motion is being filed in an abundance of caution before the expiration of the 90-day period following the filing of a Notice of Death within which a party can move to substitute
the now-deceased Plaintiff with a proper legal representative; and Movant’s Counsel will supplement this Motion with copies of the Letter of Administration upon receipt. 6. Pursuant to the Court’s directive to the parties during the April 26, 2022 hearing and conference, Plaintiff’s counsel has conferred with counsel for Defendants on this Motion and shows that certain Defendants are opposed to some portions of the relief sought.2 7. A proposed Order granting the relief requested is attached.
2 Counsel for Defendants Industrial Manufacturing Company and Arrowhead Products consented to the extension of time within which to substitute the plaintiff in principle, but did not agree to an extension of time until October 10, 2022. FRCP 25(a)(1) provides as follows: (a) Death. (1) Substitution if the Claim Is Not Extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made
within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed. Plaintiff filed a Statement of Death on March 22, 2022 wherein the Court and the parties were formally notified of the original plaintiff Jordan Potter’s death. Jordan Potter’s claims were not extinguished by his death. (See e.g. NRS § 41.100 which provides that “no cause of action is lost by reason of the death of any person, but may be maintained by or against the person's executor or administrator;” see also NRS § 41.085, which provides that the official representatives and heirs of a decedent have a right to bring a wrongful death cause of action). Thus, pursuant to FRCP 25, the action will be dismissed unless a motion for substitution
of plaintiff is filed on or before June 22, 2022 (i.e. 90 days following the filing of the statement of death). When the Statement of Death was filed, no administrator or other legally recognized representative of the decedent Jordan Potter’s estate had been appointed, and it was uncertain who would be appointed. The same remains true to date but as per the decedent’s adoptive father, James Potter, the decedent’s parents are seeking to commence a legal action on the appropriate probate court to have an administrator appointed. Upon that legal representative’s appointment, that person is to be substituted in as plaintiff so that Jordan’s claims and the interests of his estate, and his heirs (which include a minor child), can be properly and fully represented. FRCP 6 is the appropriate vehicle through which to seek an extension of the FRCP 25 deadlines. See e.g. Zanowick v. Baxter Healthcare Corp., 850 F.3d 1090, 1094 (9th Cir. 2017) (Rule 25’s “90-day deadline may be extended by Rule 6(b) ... Rule 6(b) ‘works in conjunction with Rule 25(a)(1) to provide the intended flexibility in enlarging the time for substitution.’” [internal citations omitted]. Thus, the motion herein is proper.
WHEREFORE, movant respectfully moves this Court for an Order extending the time within which to file a motion to substitute the decedent Jordan Potter as plaintiff until October 10, 2022. MAUNE RAICHLE HARTLEY FRENCH & MUDD LLC
By: C. William Margrabe C. William Margrabe New York Bar No. 5017710, Admitted Pro Hac Vice Lorrette Fisher New York Bar No. 5263934, Admitted Pro Hac Vice 1015 Locust Street, Suite 1200 St. Louis, MO 63101 wmargrabe@mrhfmlaw.com lfisher@mrhfmlaw.com Phone: (800) 358-5922 / Fax: (314) 241-4838 Attorneys for Plaintiff
And
Lawrence E. Mittin, Esq. Nevada Bar No. 005428 501 S. 8th Street Las Vegas, NV 89101 (702) 380-2800 Fax: (702) 380-2833 lmittin@cpklaw.com Attorneys for Plaintiff FOR THE DISTRICT OF NEVADA JORDAN J. POTTER, CASE NO.:: 2:20-CV-00276-RFB-VCF Plaintiff, [PROPOSED] STIPULATED ORDER GRANTING PLAINTIFF’S MOTION Vv. TO EXTEND THE TIME TO FILE A MOTION FOR SUBSTITUTION OF CRANE CoO., et al., PARTY (First Request) Defendants. THIS MATTER comes before the Court on Plaintiff's Motion to Extend the Time to File
2 Motion for Substitution of Party pursuant to Fed. R. Civ. P. 6(6)(1)(A) and LR 7-2.
IT IS THEREFORE ORDERED that Plaintiff?s Motion to Extend the Time to File a
Motion for Substitution of Party is GRANTED.
IT IS SO ORDERED:
RICHA A<- ARE, Il United States District Court DATED this 26th day of May, 2022.
I certify that I am an employee of MAUNE RAICHLE HARTLEY FRENCH & MUDD LLC and that on the 25th day of May, 2022, I served a true and correct copy of the foregoing CERTIFICATE OF INTERESTED PARTIES to all parties on file with the CM/ECF: CRAIG P. KENNY & ASSOCIATES Lawrence E. Mittin, Esq. 501 S. 8th Street Las Vegas, NV 89101 Telephone: (702) 380-2800 Facsimile: (702) 380-2833
lmittin@cpklaw.com shanks@cpklaw.com ARROWHEAD PRODUCTS Lars K. Evensen Joseph G. Went 9555 Hillwood Drive, 2nd Floor Las Vegas, Nevada 89134 Phone: 702.669.4600 Fax: 702.669.4650
Eric Larson Zalud Nora K. Cook 200 Public Square, Suite 2300 Cleveland, Ohio 44114-2378 Telephone: 216.363-4500 Facsimile: 216.363-4588
Joseph R. Blalock 4100 South High Street, Suite 2600 Columbus, Ohio 43215-6164 Telephone: 614.223-9300 Facsimile: 614.223-9330 lkevensen@hollandhart.com jgwent@hollandhart.com ezalud@beneschlaw.com jblalock@beneschlaw.com ncook@beneschlaw.com BACKUS, CARRANZA & BURDEN Edgar Carranza, Esq. Jacquelyn Franco, Esq. 3050 South Durango Drive Las Vegas, Nevada 89117 (702) 872-5555 tel. (702) 872-5545 fax ecarranza@backuslaw.com JacquelynFranco@backuslaw.com DEXTER HYSOL AEROSPACE, LLC Steven B. Abbott, Esq. Michael R. Smith, Esq. 6385 South Rainbow Blvd., Suite 600 Las Vegas, Nevada 89118 Telephone: (702) 893-3383 Facsimile: (702) 893-3789
Steven.Abbott@lewisbrisbois.com Michael.r.Smith@lewisbrisbois.com J Christopher Jorgensen Nevada Bar No. 5382 LEWIS ROCA ROTHGERBER CHRISTIE LLP 3993 Howard Hughes Pkwy, Suite 600 Las Vegas, NV 89169-5996 Tel: (702) 949-8200
cjorgensen@lrrc.com HOLLAND & HART LLP Lars K. Evensen Joseph G. Went 9555 Hillwood Drive, 2nd Floor Las Vegas, Nevada 89134 Phone: 702.669.4600 Fax: 702.669.4650 BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP Eric Larson Zalud Nora K. Cook 200 Public Square, Suite 2300 Cleveland, Ohio 44114-2378 Telephone: 216.363-4500 Facsimile: 216.363-4588 BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP Joseph R. Blalock 4100 South High Street, Suite 2600 Columbus, Ohio 43215-6164 Telephone: 614.223-9300 Facsimile: 614.223-9330
lkevensen@hollandhart.com jgwent@hollandhart.com ezalud@beneschlaw.com jblalock@beneschlaw.com ncook@beneschlaw.com PARKER-HANNIFIN CORPORATION Tracy H. Fowler Dawn L. Davis 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 Telephone: (702) 784-5275 Facsimile: (702) 784-5252
tfowler@swlaw.com ddavis@swlaw.com WYETH HOLDINGS LLC f/k/a AMERICAN CYANAMID COMPANY KING & SPALDING LLP Troy D. McMahan 50 California Street, Suite 3300 San Francisco, CA 94111 Telephone: (415) 318-1205 Stephanie A. Le 633 West Fifth St, Suite 1600 Los Angeles, CA 90071 Telephone: (213) 443-4355
Robert J. Caldwell 1050 Indigo Dr., Suite 200B Las Vegas, NV 89145 Telephone: (702) 910-3329 Fax: (702) 553-3467 tMcmahan@kslaw.com sle@kslaw.com RCaldwell@wileypetersenlaw.com
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/s/ Kelly R. Pool An Employee of MAUNE RAICHLE HARTLEY