Suggestion of Death Must be Served on Deceased's Wife to Start the 90-Day Clock For Substitution
ATKINS v. CITY OF CHICAGO (November 10, 2008)
William Atkins was a passenger in a car driven by his brother Adam in October, 2003. A Chicago police officer stopped the car and arrested William on a parole violation warrant with his name. William professed his innocence. He continued to insist he was the “wrong man” but never asked to see a lawyer or took any legal action. He was released – thirty seven days later. He brought an action under 42 U.S.C. § 1983 against the arresting officers and prison guards, among others. He alleged that his arrest was unlawful, that he was mistreated in prison, and that the Department of Corrections lacked procedures for identifying cases of mistaken identity. Adam joined in the suit as far as it complained of the arrest. Both Atkins brothers were represented by the same lawyer. In December of 2006, the lawyer filed a document captioned a “Motion to Substitute” that alerted the court to the untimely death of William. The lawyer stated that he was going to open an estate so that William’s wife Brandie could continue the lawsuit. The district court denied the motion. There was no one yet with proper status to substitute. After 90 days, the defendants moved to dismiss on the grounds that no substitution had been made within 90 days of a “suggestion of death.” The court allowed an additional month for a proper substitution. The day before the new deadline, Atkins’ lawyer filed a motion to substitute Mrs. Atkins, but she was still not yet named as his personal representative. The district court dismissed William’s case. An Illinois probate court appointed Mrs. Atkins as personal representative of William’s estate about ten days later. Mrs. Atkins appeals the district court’s dismissal.
In their opinion, Judges Posner, Flaum, and Evans reversed and remanded. The Court rejected Mrs. Atkins' arguments that the delay was excusable and that the suggestion of death did not start the 90-day clock because it was unauthorized. The Court did hold, however, that the suggestion of death did not start the clock because FRCP 25(a) requires service. Although the rule does not specifically identify the non-parties on whom service is required, the Court concluded that it certainly includes the deceased’s successors or personal representatives. Since Mrs. Atkins had the largest stake in maintaining the case, she had to be served. The Court recognized that Mrs. Atkins clearly knew of her husband’s death and it saw no indication that the Motion for Substitution was filed without her knowledge or authorization. Nevertheless, the rule requires service and her knowledge does not excuse the lack of service. The 90-day clock has not started. Mrs. Atkins should be allowed to proceed as plaintiff.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select