The opinion of the court was delivered by: Morrison C. England, JR United States District Judge
SUGGESTION OF DEATH OF JOSEPH A. LUGHES; STIPULATION TO WAIVE SUBSTITUTION OF DECEDENT'S SUCCESSOR OR REPRESENTATIVE; ORDER REMOVING JOSEPH A. LUGHES FROM CONSOLIDATED CASES [Fed. R. Civ. P. 25(a)]
SUGGESTION OF DEATH OF JOSEPH A. LUGHES TO THE COURT AND ALL PARTIES AND THEIR COUNSEL OF RECORD:
Western Heritage Insurance Company ("Western Heritage"), plaintiff in Western Heritage Ins. Co. v. Sovereign Gen'l Ins. Servs., Inc. (E.D. Cal. Civil Case No. 2:05-CV-01389-MCE-DAD) ("Western Heritage"), by and through its counsel of record, suggests on the record pursuant to Federal Rule of Civil Procedures 25(a)(1) the death of Joseph A. Lughes, its former President and co- defendant in the lead case in this consolidated action, Sovereign Gen'l Ins. Servs., Inc. v. Scottsdale Ins. Co. (E.D. Cal. Civil Case No. 2:05-CV-00312-MCE-DAD) ("Sovereign General"), during the pendency of this action, on or about November 23, 2007.
Counsel for Western Heritage was informed of Mr. Lughes death shortly before the Western Heritage jury trial began, on September 22, 2008. On February 20, 2007, all claims against Mr. Lughes in this consolidated action were dismissed pursuant to this Court's Memorandum and Order granting summary judgment in favor of Scottsdale Insurance Company, National Casualty Company, Scottsdale Indemnity Company, Western Heritage Insurance Company, R. MaX Williamson, and Joseph A. Lughes as to each and every claim in Sovereign General Insurance Services, Inc.'s ("Sovereign") operative complaint in Sovereign General, and as to each and every counterclaim in Sovereign and Martin F. Sullivan, Sr. and Gloria Sullivan's (collectively, "the Sullivans") operative counterclaim in Western Heritage.
STIPULATION TO WAIVE SUBSTITUTION OF DECEDENT'S SUCCESSOR OR REPRESENTATIVE
Pursuant to Federal Rule of Civil Procedure 25(a), if a party dies during the pendency of an action 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 within 90 days after service of a statement noting the death.
IT IS HEREBY STIPULATED and agreed to by the remaining parties in these consolidated cases, by and through their counsel of record, having received notice of the death of Joseph A. Lughes, that they do not intend to move, and will not move, to substitute in as a party any successor or representative of Joseph A. Lughes, and that any such substitution is WAIVED;
IT IS HEREBY STIPULATED and agreed to by the remaining parties in these consolidated cases, by and through their counsel of record, that the 90-day period within which to file a motion for substitution with respect to Joseph A. Lughes is WAIVED;
IT IS HEREBY STIPULATED and agreed to by the remaining parties in these consolidated cases, by and through their counsel of record, that Joseph A. Lughes should be removed as a party from these consolidated cases for any and all purposes. The parties hereby request that this Court enter an Order removing Mr. Lughes for these consolidated cases.
THE COURT, having duly considered the Suggestion of Death of Joseph A. Lughes submitted by Western Heritage Insurance Company pursuant to Federal Rule of Civil Procedure 25(a), and the Stipulation to Waive Substitution of Decedent's Successor or Representative submitted by all remaining parties to the above-captioned consolidated action, hereby ORDERS as follows:
The death of Joseph A. Lughes has been duly noted on the record;
The remaining parties to this consolidated action have stipulated to and do waive their right to move to substitute in any successor or ...