Opinion
Case No. 2:10-cv-01951-MMD-PAL c/w Case No. 2:12-cv-00264-MMD-PAL
03-12-2013
LIBERTY MUTUAL INSURANCE GROUP, Plaintiff, v. PANELIZED STRUCTURES, INC., ET AL., Defendants. PANELIZED STRUCTURES, INC., Counterclaimant, v. LIBERTY MUTUAL INSURANCE GROUP, LM INSURANCE CORPORATION, and LIBERTY MUTUAL INSURANCE GROUP/BOSTON, Counterdefendants. PANELIZED STRUCTURES, INC., Third-Party Plaintiff, v. ARIZONA LABOR FORCE, INC., an Arizona corporation, dba ALLIED FORCES TEMPORARY SERVICES, Third-Party Defendant.
ORDER
(Def's Motion to Review and Set Aside
Order of Dismissal Based on Newly
Revealed Evidence of LM Insurance
Corporation's Issuance of Insurance Policy,
Delayed Admission of Liberty Mutual's
False Claim and Manifest Injustice of
Dismissal- dkt. no. 143;
PSI's Motion for Partial Summary
Judgment Against LM Insurance
Corporation based on Bar of Statute of
Limitations - dkt. no. 152)
Before the Court are Defendant Panelized Structures, Inc.'s ("Defendant") Motion to Review and Set Aside Order of Dismissal Based on Newly Revealed Evidence of LM Insurance Corporation's Issuance of Insurance Policy, Delayed Admission of Liberty Mutual's False Claim and Manifest Injustice of Dismissal ("Motion to Set Aside") (dkt. no. 143), and Defendant's Motion for Partial Summary Judgment Against LM Insurance Corporation based on Bar of Statute of Limitations ("Motion for Partial Summary Judgment") (dkt. no. 152). Both of these Motions are part of a group of motions that Defendant filed in response to Plaintiff Liberty Mutual Insurance Group's ("Liberty Mutual") Motion to Substitute LM Insurance Corporation as the Real Party in Interest. Because the Court's Order granting Liberty Mutual's motion resolves the arguments presented in these Motions, both Motions are denied.
The facts of this case are set forth in the Court's other Orders. Pertinent to these Motions is only that the Court's Order entered February 26, 2008 (dkt. no. 185), granted the Motion to Substitute LMIC as the real party in interest for plaintiff Liberty Mutual.
Defendant's Motions presently before the Court do little more than repeat the arguments made in Defendant's Response in Opposition to the Liberty Mutual's Motion to Substitute. Both Motions are premised on the arguments that because Liberty Mutual was not a real party in interest, any actions taken by it were of no effect. However, this is not the law. Upon substitution, an "action proceeds as if it had been originally commenced by the real party in interest." Fed. R. Civ. P. 17(a)(3). Thus, after substitution, all actions taken by Liberty Mutual in the prosecution of the action are considered to have been taken by LMIC. Thus, none of the analysis changes in the Court's prior Order which Defendant seeks to set aside, and LMIC's prosecution of the action relates back to the date of Liberty Mutual's original filing.
IT IS THEREFORE ORDERED that Defendant's Motion to Review and Set Aside Order of Dismissal Based on Newly Revealed Evidence of LM Insurance Corporation's Issuance of Insurance Policy, Delayed Admission of Liberty Mutual's False Claim and Manifest Injustice of Dismissal (dkt. no. 143) is DENIED.
IT IS FURTHER ORDRERED that Defendant's Motion for Partial Summary Judgment Against LM Insurance Corporation based on Bar of Statute of Limitations (dkt. no. 152) is DENIED.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE