Opinion
Civil Action No. 00-2342-CM
July 17, 2001
MEMORANDUM AND ORDER
Plaintiff instituted the instant action in state court in March 2000. The case was removed to this court in July 2000. On February 12, 2001, plaintiff's counsel filed with the court a Motion for Substitution and Suggestion of Death, stating that plaintiff died August 12, 2000 and requesting that Pamela Taylor be substituted in the lawsuit as plaintiff. Defendants opposed the Motion for Substitution because no executor or administrator had been appointed for plaintiff's estate. The Motion for Substitution has not yet been ruled upon. This matter is before the court on defendants' motion to dismiss (Doc. 20).
Defendants argue that plaintiff's case should be dismissed pursuant to Federal Rule of Civil Procedure 25, which 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.
Rule 25(a)(1) thus requires 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. The running of the ninety-day limitations period 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. Grandbouche v. Lovell, 913 F.2d 835, 836 (10th Cir. 1990).
In this case, plaintiff's counsel filed the Motion for Substitution and Suggestion of Death. However, the attorney for the deceased party may not make the suggestion of death since he himself is not a party to the action and since he is not a representative of the deceased. Fehrenbacher v. Quackenbush, 759 F. Supp. 1516, 1518 (D.Kan. 1991). As such, the suggestion of death on record, which counsel for the deceased plaintiff filed, is not valid. Hilsbeck v. Lane Co., Inc., 168 F.R.D. 313, 314 (D.Kan. 1996). Accordingly, the ninety-day period set forth in Rule 25(a)(1) has not yet started to run. Dismissal on this basis is, therefore, not warranted.
Defendants also argue that the case should be dismissed for failure to prosecute under Rule 41(b). Defendants allege that probate of the plaintiff's estate has languished over sixty days and that the state court still has not been requested to set the petition for admission of will and to appoint a fiduciary for hearing. Plaintiff counters defendants' allegations and asserts that a hearing on the Petition for Probate of Will and Issuance of Letters of Testamentary was scheduled for May 1, 2001, at which time no person appeared to oppose the probate of the will and issuance of Letters Testamentary. Plaintiff proffers that the probate court is merely awaiting the return of the Oath of the Executor from Pamela Taylor, a resident of Chino Hills, California. This court is satisfied that plaintiff's counsel has taken proper steps to set up the probate estate of the plaintiff and has timely done so such that dismissal for failure to prosecute is not appropriate.
IT IS THEREFORE ORDERED that defendants' motion to dismiss (Doc. 20) is denied.