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.