Fehrenbacher v. Quackenbush

• Decision Date: 06 March 1991
• Docket Number: No. 89-1348-C.,89-1348-C.
• Citation: 759 F. Supp. 1516
• Parties: Wayne FEHRENBACHER, Plaintiff, v. Robert QUACKENBUSH, Defendant.
• Court: U.S. District Court — District of Kansas

759 F. Supp. 1516

Wayne FEHRENBACHER, Plaintiff, v. Robert QUACKENBUSH, Defendant.

No. 89-1348-C.

United States District Court, D. Kansas.

March 6, 1991.

Jerry K. Levy, Topeka, Kan., for plaintiff.

William Tinker, Jr., McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, Kan., for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

This is a diversity of citizenship medical malpractice case arising out of treatment provided by Robert Quackenbush, M.D., to Wayne Fehrenbacher, from mid-1973 through mid-1982, in St. John, Kansas. Fehrenbacher claims that Quackenbush's negligent prescribing of drugs has injured him and caused him to become addicted to various medications. Fehrenbacher also claims that Quackenbush was negligent in failing to refer him to other medical physicians. Fehrenbacher also alleges that Quackenbush committed fraud. Fehrenbacher seeks both compensatory and punitive damages.

This matter comes before the court upon Quackenbush's motion to dismiss based upon Fehrenbacher's failure to move to substitute, as a defendant, a representative of the decedent or his estate within 90 days of the filing of the suggestion of death as required by Fed.R.Civ.P. 25(a). In the alternative, Quackenbush moves for summary judgment. Fehrenbacher requests an order allowing the substitution of Quackenbush's estate as a defendant. The court, having considered the briefs of counsel and applicable law is now prepared to rule on the pending motions.

Motion to Dismiss

Robert Quackenbush died during the pendency of this action. On June 15, 1990, the firm representing Quackenbush in this case filed a suggestion of death pursuant to Fed.R.Civ.P. 25(a). On November 1, 1990, the firm representing Quackenbush in this case filed a motion to dismiss based upon Fehrenbacher's failure to file a motion to substitute a representative of the decedent or his estate. On November 13, 1990, Fehrenbacher responded to Quackenbush's motion to dismiss. In that response, Fehrenbacher argues that Quackenbush has failed to make a valid suggestion of death due to the fact that the pleading does not identify the representative of the successor who could be properly substituted. In the alternative, Fehrenbacher asks the court to extend the period of substitution and allow Fehrenbacher to file a substituted party out of time based upon his "excusable neglect."

Quackenbush responds that Rule 25 does not require the party filing the suggestion of death to indicate the identity of the substituted party. Quackenbush states that "in this case, defendant's counsel could not have identified the person or persons to be substituted parties because such persons have not been made known to defense counsel. No one claiming to be an executor or administrator of Dr. Quackenbush's estate has contacted this counsel." Quackenbush also contends that Fehrenbacher has not demonstrated excusable neglect.

Fed.R.Civ.P. 25(a)(1) 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.

Because it is a fairly infrequent occurrence that one of the litigants to a case dies during its pendency, Rule 25 has not been the subject of much discussion in reported cases.

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.

Grandebouche v. Lovell, 913 F.2d 835, 836 (10th Cir.1990). See United States v. Miller Bros. Constr. Co., 505 F.2d 1031 (10th Cir.1974). See also 7C C. Wright & A. Miller & M. Kane, Federal Practice and Procedure, Civil § 1955, at 542 (1986). In In re McClay, slip no. 88-1069-C, 1990 WL 66605 (D.Kan. April 26, 1990), this court had occasion to discuss and consider Rule 25 in the context of an appeal from the bankruptcy court.

The court concludes that on the record before it no valid suggestion of death has yet been filed with the court. Two reasons support this conclusion. First, the suggestion of death was made by the attorney representing Quackenbush in defense of this action. "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 terminated on the death, he is not a `representative of the deceased party' of the sort contemplated by the rule." 7C C. Wright & A. Miller & M. Kane, Federal Practice and Procedure, Civil § 1955, at 545. See Fariss v. Lynchburg Foundry, 769 F.2d 958 (4th Cir.1985).

It is apparent from Quackenbush's brief that the firm representing him in defense of this action does not represent Quackenbush's estate. Therefore, the suggestion of death was not made by a party or representative as required by the rule. In fact it is not entirely clear to the court how the firm representing Quackenbush in this action continues to represent the decedent. It is possible that the firm representing Quackenbush in this action was retained by Quackenbush's insurer. However, even if that assumption is correct, the insurance company in this case is not a named party. While the insurance company may be contractually obligated to continue representing Quackenbush in this action, it is not clear from the record as it exists that the firm who made the suggestion of death was in fact a "representative of the deceased party" within the meaning of Rule 25.

In any event, while the suggestion of death in this case is written in conformity with Form 30 found in the Appendix of Forms to the Federal Rules of Civil Procedure,¹ it is clear that Rule 25 has not been satisfied as the suggestion of death has not been served in compliance with Fed.R. Civ.P. 4 on Quackenbush's representatives. See Grandebouche, 913 F.2d at 837 (non-parties, specifically the successors or representatives of the deceased party's estate, must be served pursuant to Fed.R.Civ.P. 4).

Rule 25 provides that the suggestion of the death upon the record is made "by service of a statement of the fact of death as provide herein for the service of the motion for substitution," i.e. by service upon parties to the action as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons; and such service may be made in any judicial district. No time limit is placed by the amended Rule upon when the death must be so suggested. Nor is the suggestion of the death upon the record a prerequisite to the motion under amended Rule 25(a) for substitution of the proper parties in place of the deceased party. However, 25(a)(1) provides that the action is to be dismissed as to the deceased party, unless substitution is made not later than ninety days after the death is suggested upon the record. Thus it is only when the suggestion of the death upon the record has been made that Rule 25(a)(1) now provides a time limit upon substitution. Moreover, the Rule provides for the service of suggestion of the death upon both parties and non-parties to the action, attempting to assure the parties to the action and other concerned persons of notice of the death so that they may take appropriate action to make substitution for the deceased party. Thus, though a time limit is still required for making this substitution, it is measured from the time the suggestion of the death has been served upon the parties to the action and other interested persons, not from the time the deceased party died.

3B J. Moore & J. Kennedy, Moore's Federal Practice ¶ 25.06 (2d ed. 1990). In Quackenbush's brief, counsel states: "At this point, the administrator or executor of Dr. Quackenbush's estate has no information, at least to defense counsel's knowledge, regarding this action." Therefore it is clear, in this unusual factual scenario, that Quackenbush's own estate has not been given proper notice of this pending action, and in this court's opinion the ninety day limitation has not yet started to run.

As a final comment on this issue, the court notes that Rule 25 does not explicitly require the party making the suggestion of death to identify the decedent's representative. As the parties note, some jurisdictions hold that a valid suggestion of death must identify the representative or successor who may be substituted as a party. See McSurely v. McClellan, 753 F.2d 88, 98 (D.C.Cir.1985). In reality, Rule 25 implicitly imposes such a requirement. By requiring service of the suggestion of death on parties and non-parties, the rule implicitly allocates the burden of identifying the substitute party to the party making the suggestion of death.

Quackenbush's motion to dismiss is denied.

Fehrenbacher's Motion for Substitution

On November 15, 1990, Fehrenbacher filed a motion for substitution requesting the court to "enter an order substituting the estate of Robert Quackenbush as the property sic party defendant." Fehrenbacher's motion for substitution is deficient under Rule 25 because the motion for substitution does not name the representative of Quackenbush's...