Your Client Died During the Case – How About a Suggestion of Death?
Sometimes people die. Well, to be more accurate, everyone dies … every single time. But sometimes people die after they’ve filed a lawsuit or after they’ve been sued. If that person happens to be your client, you had better know what to do next.
Alabama Rule of Civil Procedure 25(a)(1) addresses what needs to be done when a party dies while a case is pending:
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…. Unless the motion for substitution is made not later than six months 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 in the absence of a showing of excusable neglect be dismissed as to the deceased party.
Suggestion of Death When the Plaintiff Dies
I have had several cases in which the plaintiff has died while the case was pending. Sometimes from injuries that were alleged to be related to the accident and on other occasions, for completely unrelated reasons. Either way the process is the same. As soon as I become aware that a plaintiff has died, I file a Suggestion of Death, putting the court on notice of the death. This then starts the clock for plaintiff’s counsel to substitute a party for the deceased within six months. If they fail to make the substitution, the plaintiff and his claims are due to be dismissed.
Under certain circumstances, the dismissal is at the court’s discretion. The Supreme Court of Alabama held that dismissal is not mandatory at six months if there was excusable neglect warranting an extension of time. See Hayes v. Brookwood Hospital, 572 So.2d 1251, 1254 (Ala. 1990) (holding, “We recognize that Alabama cases have consistently held that the language in A.R.Civ.P. 25(a)(1) is mandatory. However, in light of the purpose of the rules and in light of their spirit—which is not to foreclose or bar meritorious claims—we hold that the six-month provision of Rule 25(a)(1) is subject to the general language of Rule 6(b) allowing the extension of a specified time period upon a determination of excusable neglect. Accordingly, to the extent that certain of our prior cases hold that the ‘six months’ language in Rule 25(a)(1) is mandatory, we overrule those cases.”)
Suggestion of Death When the Defendant Dies
The process is more or less the same when the defendant dies. I will file a Suggestion of Death in this instance as well, since it starts the six-month clock running. The plaintiff has six months to substitute a party for the deceased defendant or request the appointment of an administrator ad litem. If the plaintiff fails to do so, the deceased defendant and the claims against him are due to be dismissed.
Substitution of a Party in Federal Court
Substitution of a deceased party in federal court operates similarly as in state court, except that the timeframe for substitution under Federal Rule of Civil Procedure 25(a)(1) is even more abbreviated. A party has only 90 days to substitute for a deceased party after suggestion of death has been filed.
If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent’s successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.
As with most other things in federal practice, you’d better have your act together if you’re in federal court and your client shuffles off his mortal coil.