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Written by Jamie Wilhite Dittert.

When a party to a federal lawsuit dies, the next steps seem simple; a notice of death is filed, the next of kin makes a motion to substitute, and—assuming the claims are not extinguished by death—the case proceeds pursuant to Fed. R. Civ. Pro. 25(a) (Rule 25). This rule, however, is fraught with jurisdiction ­specific procedural traps. First, a notice of death filed by the decedent’s attorney may not trigger the 90­-day period. Second, the notice of death may need to be served upon a successor or representative of the decedent to begin the 90­-day period. Third, a motion to substitute cannot be filed in the name of the decedent.

 

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