926 N.W.2d 465
S.D.2019Background
- Leighton sued Bennett for personal injuries from a May 2013 car accident; suit filed May 18, 2016.
- Bennett died July 24, 2017; his counsel served a suggestion of death on Leighton’s counsel on August 24, 2017.
- SDCL 15-6-25(a)(1) requires substitution within 90 days after death is suggested on the record or dismissal of the action as to the deceased party.
- Leighton did not move to substitute Bennett’s estate until December 18, 2017 (116 days after the suggestion of death); Bennett’s counsel moved to dismiss on December 11, 2017.
- Leighton argued the 90-day clock did not start until the suggestion of death had been served on Bennett’s estate/personal representative, and alternatively sought enlargement for excusable neglect.
- The circuit court held the 90-day period began when Leighton was served, denied enlargement for lack of factual showing of excusable neglect, and dismissed the action; the Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 90-day substitution deadline in SDCL 15-6-25(a)(1) starts only after the suggestion of death is served on the decedent’s estate/personal representative | Leighton: deadline did not start because suggestion of death was not served on estate/PR | Bennett: deadline started when suggestion of death was served on Leighton (a party) | Held: Deadline began when suggestion of death was served on Leighton; no requirement to also serve estate/PR |
| Whether court abused discretion by denying enlargement of time based on excusable neglect | Leighton: counsel’s lack of info about estate and unsettled law justified enlargement | Bennett: Leighton failed to prove excusable neglect; no timely action | Held: No abuse of discretion — Leighton provided no factual affidavit/evidence showing excusable neglect |
Key Cases Cited
- Ripple v. Wold, 572 N.W.2d 439 (S.D. 1997) (discusses service requirements under SDCL 15-6-25(a)(1))
- Swenson v. Brown, 771 N.W.2d 313 (S.D. 2009) (attorney for deceased party may file and serve suggestion of death)
- Stoddard v. Smith, 27 P.3d 546 (Utah 2001) (interprets analogous rule to allow suggestion of death served on parties to trigger the substitution deadline)
- Grandbouche v. Lovell, 913 F.2d 835 (10th Cir. 1990) (contrasting view that failure to serve personal representative does not trigger 90-day period)
- Moore v. Michelin Tire Co., Inc., 603 N.W.2d 513 (S.D. 1999) (sets standard of de novo review for rule interpretation)