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Rule 25 – Substitution of Parties

May 13, 2021 | Civil Procedure, Mississippi

(a) Death.

(1) If a party dies and the claim is not thereby extinguished, the court shall, upon motion, order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of summons. The action shall be dismissed without prejudice as to the deceased party if the motion for substitution is not made within ninety days after the death is suggested upon the record by service of a statement of the fact of the death as herein provided for the service of the motion.
(2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiff or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.
(b) Legal Disability. If a party comes under a legal disability the court upon motion served as provided in subdivision (a) of this rule may allow the action to be continued by or against his representative.
(c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule.
(d) Public Officers; Death or Separation From Office. When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

Miss. R. Civ. P. 25

Advisory Committee Notes

The suggestion of death does not have to identify the decedent’s successors or representatives to be substituted as the real party in interest. See Clark v. Knesal, 113 So. 3d 531, 536 (Miss. 2013). Although the rule requires that service of the suggestion of death upon non-parties be accomplished in accordance with Rule 4, the rule does not indicate which non-parties must be served with the suggestion of death so as to trigger the ninety-day time period. Interested non-parties whose rights may be cut off by the ninety-day limits must be served. See Hurst v. SW Miss. Legal Servs., 610 So. 2d 374, 386 (1992) (defendant’s failure to serve the named executrix of the deceased plaintiff’s estate with the suggestion of death rendered the suggestion of death ineffective even though the executrix may have had actual notice of the suggestion of death); Knesal, 113 So. 3d at 537 (defendant/counterplaintiff who was properly served with the suggestion of death could not argue that the failure to serve the plaintiff/counter-defendant’s non-party successors rendered the suggestion invalid because: (i) the failure to serve the plaintiff/counter-defendant’s non-party successors did not affect the defendant/counter-plaintiff’s opportunity to file a motion to substitute; and (ii) service upon the decedent’s successor was impossible because there was no existing estate or personal representative upon whom the suggestion of death could have been served). The rule contains no restriction on who may file and serve the suggestion of death; the decedent’s lawyer may file and serve it. Id. at 538.

The general provisions of Rule 6(b) apply to motions to substitute; accordingly, the court may extend the period for substitution if timely requested. Similarly, the court may allow substitution to be made after expiration of the ninety-day period on a showing that the failure to act earlier was the result of excusable neglect. See Knesal, 113 So. 3d at 539.

If the named plaintiff was deceased at the time the original complaint was filed, then the original complaint is null and void and the real party in interest cannot be substituted as the proper plaintiff because a valid action was never commenced.

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