Arizona

Civil Procedure

Civil Procedure

Rule 25 – Substitution of Parties

(a) Death.

(1)Substitution if the Claim Is Not Extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. Any party or the decedent’s successor or representative may file a motion to substitute. If the motion is not made within 90 days after a statement noting the death is served, the court must dismiss the claims by or against the decedent.
(2)Statement Noting Death. A party or the decedent’s successor or representative may file a statement noting the death of a party. If filed by a party, the statement must identify the decedent’s successor or representative if one exists and is known by the filing party. Anyone filing a statement noting death must serve the statement on the parties as provided in Rule 5(c) and on nonparties in the same manner that a summons and pleading are served under Rule 4, 4.1, or 4.2, as applicable.
(3)Service of Motion to Substitute. Anyone filing a motion to substitute must serve the motion on the parties as provided in Rule 5(c) and on the decedent’s successor or representative-if a nonparty-in the same manner that a summons and pleading are served under Rule 4, 4.1, or 4.2, as applicable.
(4)Continuation Among the Remaining Parties. After a party’s death, if the claim survives only for or against the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties. The death should be noted on the record.
(b) Incompetency. If a party becomes incompetent, the court may-on motion or on stipulation of the parties and the incompetent party’s representative-permit the action to be continued by or against the party’s representative. Anyone filing such a motion must serve the motion on the parties as provided in Rule 5(c) and on the incompetent party’s representative-if a nonparty-in the same manner that a summons and pleading are served under Rule 4, 4.1, or 4.2, as applicable.
(c) Transfer of Interest. If a party’s interest is transferred, the action may be continued by or against that party, unless the court-on motion or on stipulation of the parties and the transferee-orders the transferee to be substituted in the action or joined with the original party. Anyone filing such a motion must serve the motion on the parties as provided in Rule 5(c) and on the transferee-if a nonparty-in the same manner that a summons and pleading are served under Rule 4, 4.1, or 4.2, as applicable.
(d) Public Officers; Death or Separation from Office. An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer’s successor is automatically substituted as a party. The public officer’s counsel must file a notice of the substitution, and later proceedings should be in the substituted party’s name, but any misnomer not affecting the parties’ substantial rights must be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution.

Ariz. R. Civ. P. 25

Amended effective January 1, 2017.

State Bar Committee Note

1963 Amendment to Rule 25(a)

Present Rule 25(a)(1), together with present Rule 6(b), results in an inflexible requirement that an action be dismissed as to a deceased party if substitution is not carried out within a fixed period measured from the time of the death. The hardships and inequities of this unyielding requirement plainly appear from the cases.

The amended rule establishes a time limit for the motion to substitute based not upon the time of the death, but rather upon the time information of the death is provided by means of a suggestion of death upon the record, i.e. service of a statement of the fact of the death. Cf. Ill.Ann.Stat., c. 110, section 54(2) (Smith-Hurd 1956). The motion may not be made later than 90 days after the service of the statement unless the period is extended pursuant to Rule 6(b), as amended.

A motion to substitute may be made by any party or by the representative of the deceased party without awaiting the suggestion of death. Indeed, the motion will usually be so made. If a party or the representative of the deceased party desires to limit the time within which another may make the motion, he may do so by suggesting the death upon the record.

A motion to substitute made within the prescribed time will ordinarily be granted, but under the permissive language of the first sentence of the amended rule (“the court may order”) it may be denied by the court in the exercise of a sound discretion if made long after the death-as can occur if the suggestion of death is not made or is delayed-and circumstances have arisen rendering it unfair to allow substitution. Accordingly, a party interested in securing substitution under the amended rule should not assume that he can rest indefinitely awaiting the suggestion of death before he makes his motion to substitute.

Since the change eliminates the two-year provision and substitutes therefor the ninety-day period after the suggestion of death, it of course follows that the two-year cases are rendered obsolete. An example is Shire v. Superior Court, 63 Ariz. 420, 169 P.2d 909 (1945). The amendment will not affect such a case as Jasper v. Batt, 76 Ariz. 328, 264 P.2d 409 (1953), which requires substitution in tort cases, since this decision deals with the right of substitution and not with the timing or technique of it, and the latter matters are the only ones within the rule revision.