United States District Court, D. Colorado
ORDER REGARDING SUGGESTION OF DEATH
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE
lawsuit arises out of a car accident on October 1, 2016, in
which an underinsured driver hit the vehicle of Plaintiffs
Richard Nelson and Myrna Nelson (jointly,
“Plaintiffs”) and injured Mr. Nelson. (ECF No.
8-1 at 2.) Plaintiffs maintained an uninsured/underinsured
motorist protection policy with Defendant Ameriprise Auto
& Home Insurance Agency, Inc. (“Defendant”),
and now bring this lawsuit against Defendant alleging breach
of contract, bad faith breach of an insurance contract, and
loss of consortium. (Id. at 3-6.)
January 9, 2019, Plaintiffs filed a Suggestion of Death
notice (“Notice”), in accordance with Federal
Rule of Civil Procedure 25, stating that Mr. Nelson passed
away on October 15, 2018. (ECF No. 24 at 1.) The Notice also
stated that an estate is being established for Mr. Nelson,
and, once established, the caption will be amended to reflect
the proper parties. (Id.)
Rule 25, when a party dies and a claim is not extinguished, a
motion for substitution may be made by any party or by the
decedent's successor or representative. Fed.R.Civ.P.
25(a)(1). A motion for substitution must be made within
ninety days after service of a statement noting the death.
Id. If a motion is not made within ninety days, the
action must be dismissed. Id.
Tenth Circuit has interpreted Rule 25 to require service [of
a statement noting death] on the successors or
representatives of the deceased party's estate in
accordance with Rule 4.” Johnson v. Thomas,
2013 WL 4461747 (D. Colo. Aug. 20, 2013); see Grandbouche
v. Lovells, 913 F.2d 835 (10th Cir. 1990) (holding that
the ninety-day period under Rule 25(a)(1) does not begin to
run until the personal representative of a decedent's
estate is served with a statement of death). The statement
must be served “even if that representative has not yet
been identified or appointed.” Hamilton v.
Kemper, 2018 WL 1616808 (D. Colo. Apr. 4, 2018). Rule
25's requirement of service on a personal representative
can leave a case “in a curious limbo, unable to
meaningfully proceed unless and until someone decides to seek
appointment of a personal representative.” Id.
at *4. In Hamilton, Chief Judge Marcia S. Kreiger of
this District recognized the potential quagmire created by
Rule 25's plain language and the Tenth Circuit's
interpretation. Id. Judge Kreiger thus ordered the
remaining plaintiffs in Hamilton to “take
appropriate action” within 90 days to move the case
along or risk dismissal for failure to prosecute.
interest of fairness to the parties and efficient use of
court resources, the Court will set forth the procedure for
serving Mr. Nelson's successors and representatives
consistent with Rule 25. See Matter of Baker, 744
F.2d 1438, 1441 (10th Cir. 1984) (“[W]e are dealing
with the matter most critical to the court itself: management
of its docket and avoidance of unnecessary burdens on the
tax-supported courts, opposing parties or both.”).
the Court extends its condolences to Mr. Nelson's wife,
Myrna, and family, and hereby ORDERS as follows:
Plaintiffs' counsel is DIRECTED to deliver a copy of this
Order (ECF No. 34) and the Suggestion of Death (ECF No. 24)
by January 31, 2019 to:
a. Each of Mr. Nelson's known beneficiaries;
b. The representative(s), if any, of Mr. Nelson's Estate;
c. the Probate Registrar of the Denver Probate Court and/or
the clerk of any other court with jurisdiction over Mr.
After making such delivery, Plaintiff's counsel SHALL
FILE a certificate of service with this Court and indicate
the date on which delivery was complete within two weeks
after said delivery but, in any event, no later than
February 14, 2019;
any eligible individual or representative intends to pursue
Mr. Nelson's claims, that individual or representative
MUST FILE a motion for substitution under Federal Rule of
Civil Procedure 25(a)(1) or otherwise inform the Court of
their intention to pursue the matter within
ninety days of receiving this Order and the Suggestion of
no person files a motion for substitution under Federal Rule
of Civil Procedure 25(a)(1) or otherwise informs the Court of
an intention to pursue Mr. Nelson's claims by May 15,
2019, the Court will at ...