Opinion
Civil Action No. 03-1681, Section "K"(2).
November 1, 2004
Before the Court is defendant's Motion to Dismiss (Doc. 15) based on plaintiff's failure to substitute the proper party to pursue the claims of the deceased plaintiff as set forth in Fed.R.Civ.P. 25(a). Having reviewed the pleadings, memoranda and the relevant law, the Court finds that the motion is without merit.
Rule 25(a) of the Federal Rules of Civil Procedure provides:
If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any judicial district. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
Fed.R.Civ.P. 25(a) (emphasis added). This rule was amended in 1963 to its present state to correct what was considered to be the hardships and inequities of the unyielding requirement that substitution had to be made within two years of the deceased's death. See Fed.R.Civ.P. 25, Advisory Committee Notes to the 1963 Amendment; Blachy v. Butcher, 190 F.R.D. 428, 431 (W.D. Mich. 1999) rev'd on other grounds, 221 F.3d 896, 902 (6th Cir. 2000); Anderson v. Yangkau, 329 U.S. 482, (1947) superseded by statute, Al-Jundi v. Estate of Rockefeller, 757 F. Supp. 206 (W.D.N.Y. 1990). Under this rule, the Court finds dismissal would be unsupported by the record.
To begin, it would appear that the mere statement that a party has died contained in a pleading is not sufficient to trigger Rule 25(a); a specific filing of a "suggestion of death on the record." "[T]he time does not run until the death is suggested on the record by service of a statement of the fact of death." 7C Fed. Practice and Procedure, § 1955 at 544. In Ray v. Koester, 2004 WL 96780 (5th Cir. 2004), a separate actual filing of by the defendant's attorney began the 90-day period for plaintiff to be substituted. In Ray, however, the Fifth Circuit has specifically held that the suggestion of death does not require that the statement specifically identify the proper party to succeed the decedent. However, "[i]t has been held that the attorney for the deceased party may not make the suggestion of death since he is not himself a party to the action and, since his authority to represent the deceased terminates on the death, he is not a "representative of the decease party" of the sort contemplated in the rule." 7C Fed. Practice and Procedure, § 1955 at 545 citing Fariss v. Lynchburg Foundry, 769 F.2d 958 (4th Cir. 1985). But see, Jones Inlet Marina, Inc. v. Inglima 204 F.R.D. 238 (D.C.N.Y. 2001).
In addition, the Fifth Circuit affirmed a district court's discretion to grant an extension of time to comply with Rule 25 in Ray, at **2. The use of Rule 6(b) was also contemplated in the 1963 amendment. Blachy, 190 F.R.D. at 430. As stated in Blachy:
The Advisory Committee's Notes to the 1963 amendments indicate that the revisions were intended to allow courts to extend the 90 day period in rule 25(a)(1) pursuant to amended Rule 6(b). See Fed.R.Civ.P. 6, 25, advisory committee's notes. In addition, in more recent decisions, courts have upheld extensions of the 90 day period made pursuant to Rule 6(b). See Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir. 1993) (noting that "[w]hile couched in mandatory terms, the Advisory Committee Notes to Rule 25 indicate that the 90-day requirement may be extended by Federal Rule of Civil Procedure 69b)").Id.
Defendant relied primarily on Anderson which has been statutorily overruled and an Alabama state court decision, making this motion verge on the frivolous. The aim of the amendment was to preclude the arbitrary dismissal of cases where substitutions were not made in two years after the death of the party. Here, on the same date as an opposition to this motion was filed, a Motion to file a Second Amended Complaint was filed, which motion has been granted and has resulted in the substitution of the proper party. Considering the circumstances of this case, the Court finds that dismissal is not indicated and indeed would be unduly prejudicial to plaintiffs. Accordingly,
IT IS ORDERED that the Motion to Dismiss is DENIED.