Widow must be notified of husband’s death

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A Nov. 10 opinion from the Seventh Circuit discusses the proper procedures for attorneys to preserve a case when the client dies while the case was pending.

Counterintuitive as it may seem, even when the attorney is acting at the behest of the client’s widow, he must provide the widow notice that her husband has died and that she seeks to be substituted as the plaintiff.

The court held that, until that happens, there has been no valid “suggestion of death,” and the 90-day time limit for substitution of party does not begin to toll.

William Atkins had brought the suit in Illinois federal court against a variety of defendants after he was detained for 37 days because his name matched that of another person who was wanted for a parole violation.

On Dec. 9, 2006, his attorney, Joseph Longo, filed a motion to substitute Brandie Atkins, Atkins’ widow, as plaintiff, because Atkins had died. The district court denied the motion, because no estate had been opened and no personal representative yet appointed who could be substituted for Atkins.

Construing the Dec. 9 motion as a “suggestion of death” within the meaning of Fed.R.Civ.P. 25, one of the defendants moved to dismiss the case for failure to substitute a party as plaintiff within 90 days. The court gave Longo until April 26, 2007, to substitute a proper plaintiff.

However, the widow was not appointed as personal representative until May 7, and Longo never sought an extension.

The district court granted the motion to dismiss, but the Seventh Circuit reversed, in an opinion by Judge Richard Posner.

The court found that Longo’s failure to ask for an extension of the 90 days was inexcusable neglect, but also concluded that the 90 days never began to run, because Atkins’ widow was not served with the Dec. 9 motion.

First, however, the court rejected several other arguments regarding why the Dec. 9 motion was ineffective as a suggestion of death.

Longo argued that the motion was ineffective because it had not been authorized by then-deceased Atkins.

Posner curtly rejected that position, stating, “That is a ridiculous argument; a suggestion of death cannot be authorized by the person who has died, at least not without the intervention of a medium.”

The court also rejected as “fussy,” Longo’s argument that once a party dies, his attorney has no authority to add anything to the record, therefore, the suggestion of death must be filed by the opposing party.

However, the court held that that service on Atkins’ widow was necessary.

Rule 25 says that both parties and nonparties must be served, without setting forth any criteria for which nonparties must be served.

The court observed that, “obviously not every person in the United States who happens not to be a party to the lawsuit in question” needs to be served.

However, “nonparties with a significant financial interest in the case, namely the decedent’s successors (if his estate has been distributed) or personal representative (it has not been), should certainly be served,” Posner wrote.

Because Atkins’ widow had the largest stake in continuing the case, the court held that service on her was required.

The court acknowledged that the December 2006 motion had been filed on her behalf, and sought an order that she be the one substituted as plaintiff.

Nevertheless, the court concluded that, as an interested nonparty, she had to be served with the motion for the 90-day clock to begin running.

Defending the rule, even when it is the decedent’s lawyer who files the suggestion of death, the court noted that it protects nonparties from unwillingly finding themselves in cases in which they would rather not participate.

Accordingly, the court concluded that the December 2006 motion was a nullity, and the 90-day time limit has not yet started to run.

Before concluding, the court observed that, while Longo was most at fault, the defendants’ attorneys were not blameless, either.

The court suggested, “As soon as they were notified of William Atkins’s death they should have filed a suggestion of death with the court and served it on Atkins’s widow.”