Burch v. Illinois Central Railroad, 136 So. 3d 1063

Harold Burch worked for Illinois Central (1950–1988); diagnosed with asbestosis and lung cancer and died August 31, 2006.
Harold’s widow, Frances, timely sued Illinois Central under FELA on April 2, 2009.
Frances died in September 2011 while her suit was pending; Illinois Central filed a suggestion of death. Counsel failed to move for substitution within the 90‑day Rule 25 period.
The trial court dismissed Frances’s suit without prejudice in September 2012 for failure to substitute; plaintiffs’ counsel offered only that the omission was an oversight.
Harold’s children (wrongful‑death beneficiaries) filed a new complaint the day after dismissal; Illinois Central moved to dismiss as barred by FELA’s three‑year statute of limitations.
Trial court dismissed the second suit; the Supreme Court of Mississippi affirmed, holding equitable tolling did not apply because plaintiffs and their counsel slept on their rights and failed to show excusable neglect.\

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether equitable tolling tolled FELA’s 3‑year statute during pendency of Frances’s suit	Tolling applies while the first timely suit was pending, so the second complaint (filed immediately after dismissal) was timely	Tolling does not apply because plaintiffs slept on their rights by failing to substitute and prosecute, so limitations expired	Court held equitable tolling did not apply; statute of limitations had expired when second complaint was filed
Whether counsel’s failure to move for substitution constituted excusable neglect under Miss. R. Civ. P. 25	Counsel characterized failure as oversight, implying excusable neglect that would permit substitution and tolling	Failure was mere oversight/mistake of counsel, which does not meet the very strict excusable‑neglect standard	Court held counsel’s conduct did not show excusable neglect; trial court did not abuse discretion in dismissing first suit for failure to substitute

Price v. Illinois Central Gulf Railroad Co., 584 So.2d 1279 (Miss. 1991) (refused broad application of equitable tolling in FELA context; dismissal affirmed)
Burnett v. New York Central R.R. Co., 380 U.S. 424 (U.S. 1965) (held FELA limitations tolled while timely state suit of competent jurisdiction was pending under certain circumstances)
Knight v. Knight, 85 So.3d 832 (Miss. 2012) (dismissal without prejudice for failure to prosecute does not toll statute of limitations)
Clark v. Knesal, 113 So.3d 531 (Miss. 2013) (explained very strict standard for excusable neglect under Rule 25)
Foss v. Williams, 993 So.2d 378 (Miss. 2008) (de novo review standard for motion to dismiss)