United States District Court, E.D. Louisiana
ORDER AND REASONS
IVAN L.R. LEMELLE, District Judge.
I. NATURE OF THE MOTIONS AND RELIEF SOUGHT
There are several motions for the Court. Accordingly, and for the reasons enumerated below,
IT IS ORDERED that Plaintiff's Motion to Substitute Plaintiff (Rec. Doc. No. 52) is GRANTED, thereby substituting Lorraine Petersen, in her capacity as Administratrix of the Succession of Richard Petersen, in the place of Plaintiff, Richard Petersen.
IT IS FURTHER ORDERED that Plaintiff's Motion to Strike, or in the Alternative, Motion for Leave to File Reply Memorandum (Rec. Doc. No. 60) is DISMISSED as MOOT.
IT IS FURTHER ORDERED that Plaintiff's Motion to Dismiss for Failure to Comply with Court's Order and for Costs and Attorneys' Fees (Rec. Doc. No. 61) is GRANTED, and Defendants' Third-Party Complaint is DISMISSED without prejudice.
IT IS FURTHER ORDERED that because the foregoing moots the basis provided in the Unopposed Motion to Continue (Rec. Doc. No. 66) and Motion for Expedited Consideration thereof (Rec. Doc. No. 64), the same shall be DISMISSED as MOOT.
II. FACTS, PROCEDURAL BACKGROUND AND CONTENTIONS
In this diversity action for breach of contract, Lorraine, wife of/and Richard Petersen, assert claims against their son, Kenneth Petersen Sr. and his wife Karen Ruiz Petersen, as well as Kenneth and Karen's business, Carter Properties, LLC. Plaintiffs allege fraud, breach of fiduciary duty, breach of mandatary, conversion, and unjust enrichment arising out of a "Durable Financial Powers-of-Attorney" executed by Kenneth Petersen, Sr. This matter was removed to the Court from the 34th Judicial District Court for the Parish of Orleans.
On December 15, 2014, Lorraine Petersen filed a Motion to Substitute Plaintiff. On October 17, 2014, her husband Richard passed away. On December 3, 2014, Lorraine was appointed Administratrix of the Succession of Richard Petersen, and on December 15, 2014, moved for an order substituting her in that capacity, in the place of Plaintiff, Richard Petersen in this action.
Defendants oppose the motion on the basis that, (1) the claims by Richard are the same as those by Lorraine; (2) confusion would result as Defendants have asserted claims against three heirs (Kenneth Petersen, Leonard Petersen, and Richard Petersen, Jr.) for theft, fraud, conversion, unjust enrichment, etc. On January 2, 2015, Defendants filed an Answer to the First Amended Complaint asserting these third-party claims. Defendants claim that permitting the substitution would allow, in the event a judgment is rendered against one or more of the Defendants, the Third-Party Defendants to be unjustly enriched through the judgment obtained by the estate.
Plaintiff filed a Motion to Strike, or in the Alternative, Motion for Leave to File Reply Memorandum because the foregoing opposition was not filed at least eight days prior to the submission date.
Plaintiff filed a Motion to Dismiss [the Third-Party Complaint] for Failure to Comply with Court's Order and for Costs and Attorney's Fees. Defendants filed a Response in Opposition to ...