Grandbouche v. Lovell
| Decision Date | 06 September 1990 |
| Docket Number | No. 89-1359,89-1359 |
| Citation | 913 F.2d 835 |
| Parties | John E. GRANDBOUCHE; John Voss, Personal Representative of the Estate of John Grandbouche, Plaintiffs-Appellants, v. Larry LOVELL; Kenneth Batson; Vernon Pixley; Kathleen Budd; Alan Dougan; Dave Black; Tim Fortune; Nick Difalco; John Ottinger; Bob Ely, all special agents for the Internal Revenue Service; Steve Simmer; Bob Glenn, Inspectors for the Internal Revenue Service; Larry Hyatt, Chief of Internal Revenue Service, Criminal Investigation Division, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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.
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). 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.
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 Sec. 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, , 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) (); Tolliver v. Leach, 126 F.R.D. 529, 530-31 (W.D.Mich.1989) (); Gronowicz v. Leonard, 109 F.R.D. 624, 626-27 (S.D.N.Y.1986) ().
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