Washington v. Apria Healthcare Group, Inc., 1:16-cv-00847

Plaintiff (class representative) died; plaintiff's counsel only referenced the death in pleadings and did not file a formal Suggestion of Death.
The case is a class action; the operative complaint asserts only a class claim and no individual claims by the decedent.
Under Fed. R. Civ. P. 25(a)(1), a formal, written Suggestion of Death must be filed and served to trigger a 90-day substitution period.
The court found the existing filings insufficient to trigger Rule 25(a)(1)’s 90-day window and therefore ordered Plaintiff to file a formal “Suggestion of Death of Plaintiff” by May 3, 2017.
The court directed plaintiff’s counsel to attempt service of the suggestion on nonparty successors/representatives and required both parties to file declarations about their efforts after the 90-day period.
The court also ordered briefing (by the end of the 90-day period) on whether the complaint (a class claim) may be dismissed without prejudice due to the death of the class representative.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a pleading reference to death suffices as a Rule 25(a)(1) suggestion of death	Death referenced in pleadings is adequate	References in pleadings are insufficient; Rule 25 requires a formal written suggestion	Court held pleading references are insufficient; ordered a formal Suggestion of Death to be filed and served
Whether the 90-day substitution period under Rule 25(a)(1) has begun	90-day period should run from counsel’s notice in pleadings	90-day period not triggered because no formal suggestion filed and served	Court held 90-day period has not begun and will be triggered only by formal filing and service
Whether nonparty successors/representatives must be served	Service on defendant only is sufficient	Rule 25 requires service on other parties and nonparty successors/representatives	Court directed plaintiff to attempt service on nonparty successors/representatives and to report efforts
Whether the class complaint must be dismissed following death of the class representative	Implicitly, that dismissal may be unnecessary or premature without substitution	Death of representative may require dismissal if not timely substituted	Court ordered briefing by the end of the 90-day period on whether dismissal without prejudice is appropriate

Barlow v. Ground, 39 F.3d 231 (9th Cir. 1994) (requires formal suggestion of death on the record)
Grandbouche v. Lovell, 913 F.2d 835 (10th Cir. 1990) (pleading references to death insufficient under Rule 25)
Younts v. Fremont County, 370 F.3d 748 (8th Cir. 2004) (formal suggestion and service requirements under Rule 25)
Lightfoot v. District of Columbia, 629 F. Supp. 2d 16 (D.D.C. 2009) (discussing the formality and service requirements for suggestions of death)