Opinion
Case No. 99-4144-RDR
October 11, 2002
MEMORANDUM AND ORDER
Joan Finney is a named plaintiff in this case. She died on July 28, 2001. A motion to substitute the Estate of Joan M. Finney as plaintiff was filed on April 8, 2002.
On April 12, 2002 defendants filed a response in opposition to the motion to substitute which argued that there was a failure to comply with the requirements of FED.R.CIV.P. 25(a)(1). This rule requires service of a motion to substitute and notice of hearing on parties and persons not parties, including the representative of the estate of the deceased. Rule 25 provides in part:
(a)(1) 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.
This case is set for trial on October 21, 2002. This trial setting was formally made on May 8, 2002.
No reply was made to the defendants' opposition to the motion to substitute. On July 1, 2002 the court noted that no reply had been made and that Rule 25 did require service on the parties and persons not parties. The court announced that it would defer ruling upon the motion to substitute for 40 days "pending notice of compliance with the service requirements of Rule 25." Doc. No. 68. The court also warned that we would consider denying the motion to substitute if proper service was not accomplished.
No response was made to the court's order. So, on September 18, 2002, more than 70 days after the order, the court denied the motion to substitute.
This case is now before the court upon plaintiffs' motion for reconsideration which was filed on October 1, 2002. The motion states: "On April 22, 2002, plaintiff caused an Amended Certificate of Service to be filed with the court indicating that the estate of Joan M. Finney had been served with a copy of the Motion to Substitute Parties." The motion makes reference to a copy of the document titled "Amended Certificate of Service for Motion for Substitution of Party." However, contrary to plaintiffs' representation, there is no record in the official court file that this document was filed with the court. Plaintiffs also make reference to an affidavit from the attorney for the Estate of Joan Finney, dated September 26, 2002. The affidavit states that "[o]n or about April 22, 2002" he received a copy of the motion to substitute and a copy of the amended certificate of service. No explanation for ignoring the court's order of July 1, 2002 is given in the motion for reconsideration, other than the belief that the service requirements had been satisfied in April. Defendants oppose reconsideration on the following grounds. First, defendants contend that plaintiffs did not serve a notice of hearing upon the persons designated in Rule 25. Second, defendants assert that service was improper because it was upon the attorney for the Estate of Joan Finney, as opposed to the executrix of the Estate, and because it was made by first class mail, as opposed to personal service or certified mail. Defendants also assert that, because trial is imminent, they would suffer unfair prejudice if substitution were permitted because they would have to prepare for a second plaintiff.
The court agrees with defendants that plaintiffs have not complied with the service requirements of Rule 4 as incorporated in Rule 25. Actual notice of a lawsuit is not generally considered sufficient to satisfy the requirements of Rule 4. Mid-Continent Wood Products, Inc. v. Harris, 936 F.2d 297, 300-01 (7th Cir. 1991). In this instance, we do not believe it should be considered sufficient to satisfy Rule 25. See Barlow v. Ground, 39 F.3d 231, 233-34 (9th Cir. 1994); Grandbouche v. Lovell, 913 F.3d 835, 837 (10th Cir. 1990); Fehrenbacher v. Quackenbush, 759 F. Supp. 1516, 1519 (D.Kan. 1991); Hippen v. Griffiths, 1991 WL 152833 (D.Kan. 1991). Nor has plaintiff demonstrated good grounds for failing to respond to the court's order of July 1, 2002. Finally, we note that while the interests and claims of the Estate of Joan Finney do not appear to be significantly different from some of the interests and claims of Richard Finney, defendants have proceeded for several months in this case with the impression that the Estate was not a party and quite possibly would not be a party. Defendants could suffer some unfair prejudice if the Estate were added as a party at this late stage.
Therefore, the motion to reconsider shall be denied.
IT IS SO ORDERED.