Keller v. Bennett
103 So. 3d 747
| Miss. Ct. App. | 2012Background
- Bennett, a defendant in Keller's tort action, died during litigation over a car collision with Keller.
- Bennett’s counsel filed a suggestion of death on September 10, 2009, served on Keller under Rule 5.
- Ninety days passed without Keller filing a motion for substitution, leading to a dismissal motion by Bennett’s counsel on January 7, 2010.
- Keller never opened Bennett’s estate or identified a proper successor/representative during the initial year.
- Keller moved for leave to file a motion for substitution only on January 20, 2011, after the ninety-day period had expired.
- Circuit court denied the motion as untimely, dismissing Keller’s claims against Bennett and granting summary judgment for Larish, finalizing the judgments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the ninety-day period begin? | Keller argues the period did not start. | Bennett's death suggested triggers Rule 25(a)(1). | Period begins when death is suggested upon the record. |
| Who may serve the suggestion of death to trigger the period? | Keller: nonparties must be served under Rule 4. | Bennett's attorney could serve the suggestion of death. | Rule 25(a)(1) permits service by the deceased party’s attorney; no Rule 4 nonparty serving requirement needed here. |
| Must the suggestion of death identify the successor? | Keller argues the identification is required to start the period. | No requirement to identify the successor in the suggestion. | No identification of successor is required; the suggestion of death is sufficient. |
| Was Keller's delay excusable or subject to enlargement? | Keller could have sought enlargement under Rule 6(b). | Delay was not excusable; timely action was neglected. | Rule 6(b) enlargement could have been sought; failure to act was not excusable neglect; dismissal proper. |
Key Cases Cited
- Estate of Baxter v. Shaw Assocs., 797 So.2d 396 (Miss. Ct. App. 2001) (service of the death notice triggers the period; no party to be served condition)
- Hurst v. Southwest Miss. Legal Servs. Corp., 610 So.2d 374 (Miss. 1992) (actual notice not enough; requires proper service for nonparties)
- Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467 (2d Cir. 1998) (no requirement to identify successor in the suggestion of death)
- Ray v. Koester, 85 Fed.Appx. 983 (5th Cir. 2004) (Rule 25 does not require identification of the successor)
- Stoddard v. Smith, 27 P.3d 549 (Utah 2001) (supports view that suggestion need not name successor)
- McSurely v. McClellan, 753 F.2d 88 (D.C. Cir. 1985) (recognizes identification issue in federal rule; cited in analysis)
- Rende v. Kay, 415 F.2d 983 (D.C. Cir.) (identification of successor discussed in federal context)