What Happens When a Litigant Dies? There's a Rule for That

• Pages: 22-22
• Date: 01 July 2024
• Author: Lauren Gregory Leipold
• Subject Matter: Civil Law

ecently, I had to learn the hard way what can hap-

pen when a party to litigation does not live long

enough to see the conclusion of his case. Spoiler

alert: Sometimes, it’s a little less than clear. So while

this topic is a little depressing—after all, I’d like

to think even the most stone-cold litigants wouldn’t wish pre-

mature death on anyone—it is worth a quick primer so that

you can avoid potential pitfalls in this (hopefully unlikely)

scenario.

Federal Rule of Civil Procedure 25 contemplates death of a

party and authorizes courts to entertain a motion to substitute

“the proper party” in the event the motion is made “within 90

days after service of a statement noting the death.” However,

the rule does not specify who must prepare, le, and serve that

statement of death. Nor does it offer any suggestion as to who

the “proper party” might be. Therefore, things can get messy if

there isn’t cooperation on the other side of the “v.”

The “Sugges tion of Death ”

The ling alerting the court and other parties to a death is

typically styled as a “Suggestion of Death.” Rule 25 does not

assign ling duty to any particular party, but it makes sense

that a party in the position of plaintiff would want to take

the initiative to prepare and le the Suggestion of Death in

order to keep the case moving forward. However, in cases

where the deceased party is a defendant, the plaintiff may not

have all the necessary information to do so. Remember, the

rule requires naming the “proper party” to step in. How is the

plaintiff to know who that is without the assistance of defense

counsel or the decedent’s heirs?

Some courts have held that the “proper party” for substi-

tution is the “distributee of a distributed estate,” regardless

of whether that person has been formally appointed as an

estate administrator. But other courts seem to require formal

appointment by a state probate court. Both interpretations of

Rule 25 create hurdles for a plaintiff seeking to move for sub-

stitution in cases where the defendant’s affairs are not neces-

sarily public. And even if a plaintiff is able to determine which

probate court records to search to identify an administrator or

distributee, probate proceedings often take time.

Once the “proper party” is identied, the party preparing

and ling the Suggestion of Death must then identify everyone

who should be served with a copy. Rule 25 provides that who-

ever les the Suggestion of Death is supposed to serve parties

pursuant to Rule 5 (e-ling will generally sufce), while non-

parties must be served pursuant to Rule 4 (personal service

required). The Fourth Circuit Court of Appeals suggests that

the serving party should err on the side of providing proper

notice to anyone who might possibly have an interest in the

proceeding, including “successors or representatives of the

deceased party.”

Once service is effectuated, the stakes are high. The plain

text of Rule 25 is very clear: If a motion to substitute “is

not made within 90 days after service of a statement noting

the death, the action by or against the decedent must be dis-

missed” (emphasis added).

Perverse Incentives

Because of all of the potential pitfalls associated with a plain-

tiff trying to le a Suggestion of Death when the decedent is

on the other side of the case, the Advisory Committee that

revised Rule 25 in 1963 “plainly contemplated” that the

Suggestion of Death would “emanat[e] from the side of the

deceased,” according to the U.S. Court of Appeals for the D.C.

Circuit in Rende v. Kay.

But there is a major potential problem with this interpreta-

tion: When the decedent is the defendant, that party’s repre-

sentative could either le nothing or le a Suggestion of Death

but not complete service. This would mean that the party “that

has no interest in recovery from or blame on that deceased

defendant,” as stated by the U.S. Court of Appeals for the

Eleventh Circuit in Silas v. Sheriff of Broward County, would

be in charge of determining when the clock should start run-

ning for a motion to substitute.

So what is a plaintiff to do in such a situation? He or

she can at least still take some action. It is possible to le a

Suggestion of Death without naming a specic representative,

which would hopefully prompt the other side to reveal infor-

mation regarding the identity of the estate representative. If

the other side is uncooperative, the plaintiff can highlight that

to the court in a motion for extension of time to move for sub-

stitution pursuant to Rule 6.

RESOURCES

Gilmore v. Lockar d, 936 F.3d 857 (9th Cir. 2019).

Lizarazo v. Miami-D ade Corr. & Rehab. Dep’t, 87 8 F.3d 1008, 1009

(11th Cir. 2017 ).

What Happens When a Litigant Dies?

There’s a Rule for That

By Lauren Gregory L eipold, Litigation News Associate Editor

SUMMER 2 024 • VOL. 49 NO. 4

22 | ABA LITIGATION SECTIO N

CIVIL PROCEDURE UPDATE