Free Motion to Substitute Party - District Court of Colorado - Colorado

Case 1:04-cv-01149-RPM

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Filed 03/07/2006

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UNITED STATES DISTRICT COURT DISTRICT OF COLORADO Civil Action No. 04-cv-01149-RPM MICHAEL ANDREW DARR, Plaintiff, v. ROBERT NEWMYER; OUTLAW PRODUCTIONS, INC., a California corporation; TOWN OF TELLURIDE, COLORADO, Defendants. MOTION FOR SUBSTITUTION OF DECEASED DEFENDANT

Pursuant to F.R.C.P. 25(a), Plaintiff Michael Andrew Darr ("Darr") moves the court for an order substituting the duly appointed personal representative of the estate of Robert Newmyer for the Defendant Newmyer, who is now deceased. In support of the Motion, Plaintiff states as follows: 1. On June 4, 2004, Plaintiff asserted claims against Defendant Newmyer for false

and defamatory statements against Darr, for intentionally interfering with Darr's employment as a deputy marshal for the Town of Telluride, Colorado and for extreme and outrageous conduct. In accordance with C.R.S. § 13-20-101, the claims of intentional interference with employment and outrageous conduct survive and are not extinguished upon Defendant's death. 2. On December 12, 2005, the Defendant died leaving a last will and testament. The

will was duly admitted to probate on or about March 2, 2006, in the District Court of San Miguel County, Colorado. On March 2, 2006, letters testamentary were issued to Deborah Jelin

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Newmyer, personal representative for the estate of Robert Newmyer. 3. Counsel for Defendant Robert Newmyer has not suggested on the record the

death of Robert Newmyer pursuant to F.R.C.P. 25(a)(1). 4. Concurrent with the filing of this Motion, it was provided to Patricia A. McVerry,

attorney for the personal representative, who is authorized to accept service on her behalf. In addition, Plaintiff has filed a claim with the estate in accordance with C.R.S. § 13-20 101(2). WHEREFORE, the Plaintiff respectfully requests this Court to enter an Order substituting the personal representative of the estate of Robert Newmyer for the deceased Defendant Newmyer and ordering that this action will continue against the personal representative as if the deceased Defendant Newmyer had survived. Dated this 7th day of March, 2006. Respectfully submitted, By: /s/ Angela L. Ekker____________ Angela L. Ekker BARNHART, EKKER & MCNALLY, LLP 7887 E. Belleview, #1200 Englewood, Colorado 80111 Telephone: (303) 793-0700 Fax: (303) 793-1950 E-mail: [email protected] Attorneys for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on this 7th day of March, 2006, a true and correct copy of this MOTION FOR SUBSTITUTION OF DECEASED DEFENDANT was sent via first-class mail, postage prepaid, addressed to: John H. Steel, Esq. 126 W. Colorado Ave. P. O. Box 2784 Telluride, CO 81435 E-mail: [email protected] J. Andrew Nathan, Esq. NATHAN, BREMER, DUMM & MYERS, P.C. 3900 E. Mexico Ave., #1000 Denver, CO 80210 E-mail: [email protected] Gary L. Doehling, Esq. DOEHLING & DRISCOLL, P.C. 628 Rood Avenue, Suite 3 Grand Junction, CO 81501 E-mail: [email protected] Daniel Grossman, Esq. LAW OFFICE OF DAN GROSSMAN, LLC 1129 Pennsylvania Street, Third Floor Denver, CO 80203 E-mail: [email protected] By: /s/ Angela L. Ekker________________ Angela L. Ekker BARNHART, EKKER & MCNALLY, LLP 7887 E. Belleview, #1200 Englewood, Colorado 80111 Telephone: (303) 793-0700 Fax: (303) 793-1950 E-mail: [email protected] Attorneys for Plaintiff

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