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Grandbouche v. Lovell

United States Court of Appeals, Tenth Circuit
Sep 6, 1990
913 F.2d 835 (10th Cir. 1990)

Summary

holding that even though the attorney for the decedent's estate was noticed, the successor or representatives of the deceased-party's estate were required to be noticed as well

Summary of this case from Sampson v. ASC Industries

Opinion

No. 89-1359.

September 6, 1990.

Jennifer A. Greene and William A. Cohan, Cohan Greene, Denver, Colo., for plaintiffs-appellants.

Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen, Kenneth L. Greene, and Howard M. Soloman, Tax Div., Dept. of Justice, Washington, D.C. (Michael J. Norton, U.S. Atty., Denver, Colo., of Counsel), for defendants-appellees.

Appeal from the United States District Court for the District of Colorado.

Before SEYMOUR, BRORBY and EBEL, Circuit Judges.


Plaintiffs appeal the district court's order dismissing this action for failure to file a timely motion for substitution pursuant to Fed.R.Civ.P. 25(a)(1). The district court initially dismissed this action when plaintiff Grandbouche failed to comply with a discovery order. See Grandbouche v. Clancy, 825 F.2d 1463, 1464 (10th Cir. 1987). While the appeal of that decision was before this court, plaintiff Grandbouche died. See id. at 1465. This court, after requesting that the parties file supplemental briefs addressing the effect of the death of plaintiff Grandbouche on the instant action, ultimately determined that the action survived plaintiff's death, vacated the district court's order of dismissal, and remanded the action to the district court. Id. at 1465, 1467.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

On September 5, 1989, defendants filed with the district court a motion to dismiss this action for failure to file a timely motion to substitute a proper party for the deceased plaintiff. Immediately thereafter the personal representative of decedent's estate filed a motion to substitute himself as a party-plaintiff in this action. The district court denied the motion for substitution and granted defendants' motion to dismiss. Plaintiffs appeal.

Federal Rule of Civil Procedure 25(a)(1) provides that

[i]f 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.

Prior to its amendment in 1963, Rule 25(a)(1) required a court to dismiss an action if no motion for substitution had been filed within two years of the death of a party. See, e.g., Rende v. Kay, 415 F.2d 983, 984 (D.C. Cir. 1969). In order to alleviate the inequities caused by the inflexibility of this rule, see id. at 984, Rule 25(a)(1) was amended to require a motion for substitution to be filed within ninety days from the time a suggestion of death is filed in the district court and properly served. See United States v. Miller Bros. Constr. Co., 505 F.2d 1031, 1034-35 (10th Cir. 1974); see also 7C Wright Miller, Federal Practice and Procedure § 1955 (2d ed. 1986).

Defendants assert that a sufficient suggestion of death was made under Rule 25(a)(1) in the appellate proceedings addressing the effect of plaintiff's death on this action.

The suggestion of the decedent's death was spread on the record approximately two years earlier by this Court's order requiring supplemental briefs, the supplemental brief of the defendants, this Court's decision in Grandbouche I, [ 825 F.2d 1463], and the docket entry thereof. Each of these documents was entered in the record of the case and was served on counsel for the estate. Under these circumstances, the purpose of requiring that a party's death be suggested on the record was clearly satisfied.

Appellees' Brief at 9. We disagree.

The running of the ninety-day limitations period under Rule 25(a)(1) is not triggered unless a formal suggestion of death is made on the record, regardless of whether the parties have knowledge of a party's death. See Miller Bros., 505 F.2d at 1034-35. Mere reference to a party's death in court proceedings or pleadings is not sufficient to trigger the limitations period for filing a motion for substitution. See, e.g., Kaldawy v. Gold Serv. Movers, Inc., 129 F.R.D. 475, 477 (S.D.N.Y. 1990) (court's order noting plaintiff's death and placing case on suspended calendar, which was mailed to counsel for all parties, including decedent's counsel, insufficient to trigger the ninety-day limitations period); Tolliver v. Leach, 126 F.R.D. 529, 530-31 (W.D.Mich. 1989) (defense counsel's statement concerning defendant's death, made on record during discovery conference, insufficient to trigger limitations period); Gronowicz v. Leonard, 109 F.R.D. 624, 626-27 (S.D.N.Y. 1986) (letter from party's attorney to court notifying court of party's death insufficient suggestion of death to trigger limitations period).

Further, a suggestion of death must be served in accordance with Rule 25(a)(1). See Miller Bros., 505 F.2d at 1034-35. Defendants argue that the requirement of service was satisfied in the instant case during the initial appellate proceedings because the supplemental briefs and this court's order were served on the attorneys for the parties, including decedent's attorney who is also the attorney for decedent's estate. While service of a suggestion of death on counsel will satisfy the requirement of Rule 25(a)(1) for service of parties to the litigation, the service required by Rule 25(a)(1) on nonparties, specifically the successors or representatives of the deceased party's estate, must be service pursuant to Fed.R.Civ.P. 4. See Fariss v. Lynchburg Foundry, 769 F.2d 958, 961 (4th Cir. 1985) (to satisfy Rule 25(a)(1), motion for substitution or suggestion of death must be personally served on nonparty representative of deceased, rather than deceased's attorney); see also 7C Wright Miller, Federal Practice and Procedure § 1955 (2d ed. 1986).

In the instant case, because the personal representative of decedent's estate did not receive service of any purported suggestion of death, the ninety-day limitations period did not begin to run. See Miller Bros., 505 F.2d at 1034-35. Plaintiffs' motion for substitution was thus timely filed.

The order of the United States District Court for the District of Colorado denying plaintiffs' motion for substitution and granting defendants' motion to dismiss is REVERSED, and the case is REMANDED to the district court for proceedings consistent with this opinion.


Summaries of

Grandbouche v. Lovell

United States Court of Appeals, Tenth Circuit
Sep 6, 1990
913 F.2d 835 (10th Cir. 1990)

holding that even though the attorney for the decedent's estate was noticed, the successor or representatives of the deceased-party's estate were required to be noticed as well

Summary of this case from Sampson v. ASC Industries

holding that service of the suggestion of death on counsel for the deceased plaintiff was insufficient because Rule 25 required personal service on the estate, as a nonparty, and so the ninety-day limit in Rule 25 had not begun to run

Summary of this case from Giles v. Campbell

holding that, under Rule 25, the service required “on nonparties, specifically the successors or representatives of the deceased party's estate, must be service pursuant to Fed.R.Civ.P. 4”

Summary of this case from Giles v. Campbell

holding the 90-day limitation time "is not triggered unless a formal suggestion of death is made on the record, regardless of whether the parties have knowledge of a party's death"

Summary of this case from Younts v. Fremont County, Iowa

holding that the ninety-day limitation period does not start running until the non-party personal representative of the decedent's estate is served

Summary of this case from Dillon v. Dish Network, LLC

holding that, under Rule 25, the service required "on nonparties, specifically the successors or representatives of the deceased party's estate, must be service pursuant to Fed. R. Civ. P. 4."

Summary of this case from Elalem v. Chickasaw Nation Indus.

holding that the ninety-day period under Rule 25 does not begin to run until the personal representative of a decedent's estate is served with a statement of death

Summary of this case from Nelson v. Ameriprise Auto & Home Ins. Agency, Inc.

holding that the ninety-day period under Rule 25 does not begin to run until the personal representative of a decedent's estate is served with a statement of death

Summary of this case from Lara v. Union Pac. R.R. Co.

holding that even though the attorney for the decedent's estate was noticed, the successor or representatives of the deceased-party's estate were required to be noticed as well

Summary of this case from Ringo v. Ard

holding that even though the attorney for the decedent's estate was noticed, the successor or representatives of the deceased-party's estate were required to be noticed as well

Summary of this case from Lewis v. Flowers

holding that even though the attorney for the decedent's estate was noticed, the successor or representatives of the deceased-party's estate were required to be noticed as well

Summary of this case from Lewis v. Flowers

holding that "[m]ere reference to a party's death in court proceedings or pleadings is not sufficient to trigger the limitations period for filing a motion for substitution"; "because the personal representative of decedent's estate did not receive service of any purported suggestion of death, the ninety-day limitations period did not begin to run. . . . Plaintiffs' motion for substitution was thus timely filed."

Summary of this case from Sloan v. Overton

holding that the mere relationship between a defendant and his attorney does not, by itself, convey authority to accept service of process

Summary of this case from Ellis v. Johnston

holding the 90-day limitation time "is not triggered unless a formal suggestion of death is made on the record, regardless of whether the parties have knowledge of a party's death"

Summary of this case from Broyles v. McCane

holding the 90-day limitation time "is not triggered unless a formal suggestion of death is made on the record, regardless of whether the parties have knowledge of a party's death"

Summary of this case from Stanford v. Paulk

holding that "the running of the ninety-day limitations period under Rule 25 is not triggered unless a formal suggestion of death is made on the record, regardless of whether the parties have knowledge of a party's death. Mere reference to a party's death in court proceedings or pleadings is not sufficient to trigger the limitations period for filing a motion for substitution."

Summary of this case from Terrace v. U.S.

holding that the ninety-day time period under the federal rule "is not triggered unless a formal suggestion of death is made on the record, regardless of whether the parties have knowledge of a party's death" and that "[m]ere reference to a party's death in court proceedings or pleadings is not sufficient to trigger the limitations period for filing a motion for substitution"

Summary of this case from Blue v. R.J. Reynolds Tobacco Co.

holding service by mail of a formal suggestion of death by mail on the deceased plaintiff's attorney as permitted pursuant to Fed.R.Civ.P. 5, the federal counterpart to 12 O.S. § 2005, for service on parties did not trigger the ninety-day time period because the deceased's personal representative was not a party until served with summons pursuant to Fed.R.Civ.P. 4

Summary of this case from Garrett v. Gordon

holding service by mail of a formal suggestion of death by mail on the deceased plaintiff's attorney as permitted pursuant to Fed.R.Civ.P. 5, the federal counterpart to 12 O.S. § 2005, for service on parties did not trigger the ninety-day time period because the deceased's personal representative was not a party until served with summons pursuant to Fed.R.Civ.P. 4

Summary of this case from Garrett v. Gordon

providing that service of a suggestion of death on nonparties includes service on “the successors or representatives of the deceased party's estate . . . pursuant to Fed.R.Civ.P. 4”

Summary of this case from Hafen v. Wade

stating that “[t]he running of the ninety-day limitations period under Rule 25 is not triggered unless a formal suggestion of death is made on the record, regardless of whether the parties have knowledge of a party's death” and that the suggestion of death must be served in accordance with the requirements of Rule 25

Summary of this case from Hafen v. Wade

In Grandbouche, the 90-day period did not begin to run because the statement noting death was not served on the personal representative of the decedent's estate.

Summary of this case from BECK v. BOARD OF COUNTY COMMISSIONERS OF GRANT COUNTY

In Grandbouche, the Tenth Circuit held that "the service required by Rule 25(a)(1) on nonparties, specifically the successors or representatives of the deceased party's estate, must be served pursuant to FED.R.CIV.P. 4." Id.

Summary of this case from THORNTON v. AMERICA ONLINE/TIME WARNER, INC.
Case details for

Grandbouche v. Lovell

Case Details

Full title:JOHN E. GRANDBOUCHE; JOHN VOSS, PERSONAL REPRESENTATIVE OF THE ESTATE OF…

Court:United States Court of Appeals, Tenth Circuit

Date published: Sep 6, 1990

Citations

913 F.2d 835 (10th Cir. 1990)

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