NOTES TO RULE 25
HISTORY: (Amended Oct. 20, 1949; July 19, 1961; July 1, 1963; Aug. 1, 1987)
Notes of Advisory Committee on Rules.
Note to Subdivision (a).
1. The first paragraph of this rule is based upon former Equity Rule 45 (Death of Party--Revivor) and USC, Title 28, former § 778 (Death of parties; substitution of executor or administrator). The scire facias procedure provided for in the statute cited is superseded and the writ is abolished by Rule 81(b). Paragraph two states the content of USC, Title 28, former § 779 (Death of one of several plaintiffs or defendants). With these two paragraphs compare generally English Rules Under the Judicature Act (The Annual Practice, 1937) O. 17, r r 1--10.
2. This rule modifies U.S.C., Title 28, former §§ 778 (Death of parties; substitution of executor or administrator), 779 (Death of one of several plaintiffs or defendants), and 780 (Survival of actions, suits, or proceedings, etc.) insofar as they differ from it.
Note to Subdivisions (b) and (c). These are a combination and adaptation of NYCPA (1937) § 83 and Calif Code Civ Proc (Deering, 1937) § 385; see also 4 Nev Comp Laws (Hillyer, 1929) § 8561.
Note to Subdivision (d).
With the first and last sentences compare U.S.C., Title 28, former § 780 (Survival of actions, suits, or proceedings, etc.). With the second sentence of this subdivision compare Ex parte La Prade, 289 US 444, 53 S Ct 682, 77 L Ed 1311 (1933).
Notes of Advisory Committee on 1949 amendments to Rules.
1948--The amendment effective October 19, 1949, inserted the words, "the Canal Zone, a territory, an insular possession," in the first sentence of subdivision (d), and, in the same sentence, after the phrase "or other governmental agency," deleted the words, "or any other officer specified in the act of February 13, 1925, ch 229, § 11 (43 Stat 941), formerly section 780 of this title".
Notes of Advisory Committee on 1961 amendments to Rules.
Subdivision (d)(1).
Present Rule 25(d) is generally considered to be unsatisfactory. 4 Moore's Federal Practice para. 25.01 [7] (2d ed 1950); Wright, Amendments to the Federal Rules: The Function of a Continuing Rules Committee, 7 Vand L Rev 521, 529 (1954); Developments in the Law--Remedies Against the United States and Its Officials, 70 Harv L Rev 827, 931--34 (1957). To require, as a condition of substituting a successor public officer as a party to a pending action, that an application be made with a showing that there is substantial need for continuing the litigation, can rarely serve any useful purpose and fosters a burdensome formality. And to prescribe a short, fixed time period for substitution which cannot be extended even by agreement, see Snyder v Buck, 340 US 15, 19, 95 L Ed 15 (1950), with the penalty of dismissal of the action, "makes a trap for unsuspecting litigants which seems unworthy of a great government." Vibra Brush Corp. v Schaffer, 256 F2d 681, 684 (2d Cir 1958). Although courts have on occasion found means of undercutting the rule, e.g. Acheson v Furusho, 212 F2d 284 (9th Cir 1954) (substitution of defendant officer unnecessary on theory that only a declaration of status was sought), it has operated harshly in many instances, e.g. Snyder v Buck, supra; Poindexter v Folsom, 242 F2d 516 (3d Cir 1957).
Under the amendment, the successor is automatically substituted as a party without an application or showing of need to continue the action. An order of substitution is not required, but may be entered at any time if a party desires or the court thinks fit.
The general term "public officer" is used in preference to the enumeration which appears in the present rule. It comprises Federal, State, and local officers.
The expression "in his official capacity" is to be interpreted in its context as part of a simple procedural rule for substitution; care should be taken not to distort its meaning by mistaken analogies to the doctrine of sovereign immunity from suit or the Eleventh Amendment. The amended rule will apply to all actions brought by public officers for the government, and to any action brought in form against a named officer, but intrinsically against the government or the office or the incumbent thereof whoever he may be from time to time during the action. Thus the amended rule will apply to actions against officers to compel performance of official duties or to obtain judicial review of their orders. It will also apply to actions to prevent officers from acting in excess of their authority or under authority not validly conferred, cf. Philadelphia Co. v Stimson, 223 US 605, 56 L Ed 570 (1912), or from enforcing unconstitutional enactments, cf. Ex parte Young, 209 US 123, 52 L Ed 714 (1908); Ex parte La Prade, 289 US 444, 77 L Ed 1311 (1933). In general it will apply whenever effective relief would call for corrective behavior by the one then having official status and power, rather than one who has lost that status and power through ceasing to hold office. Cf. Land v Dollar, 330 US 731, 91 L Ed 1209, (1947); Larson v Domestic & Foreign Commerce Corp. 337 US 682, 93 L Ed 1628 (1949). Excluded from the operation of the amended rule will be the relatively infrequent actions which are directed to securing money judgments against the named officers enforceable against their personal assets; in these cases Rule 25(a)(1), not Rule 25(d), applies to the question of substitution. Examples are actions against officers seeking to make them pay damages out of their own pockets for defamatory utterances or other misconduct in some way related to the office, see Barr v Matteo, 360 US 564, 3 L Ed 2d 1434 (1959); § 2006, 4 Moore, supra, para. 25.05, p 531; but see 28 USC § 1346(a)(1) authorizing the bringing of such suits against the United States rather than the officer.
Automatic substitution under the amended rule, being merely a procedural device for substituting a successor for a past officeholder as a party, is distinct from and does not affect any substantive issues which may be involved in the action. Thus any defense of immunity from suit will remain in the case despite a substitution.
When the successor does not intend to pursue the policy of his predecessor which gave rise to the lawsuit, it will be open to him, after substitution, as plaintiff to seek voluntary dismissal of the action, or as defendant to seek to have the action dismissed as moot or to take other appropriate steps to avert a judgment or decree. Contrast Ex parte La Prade, supra; Allen v Regents of the University System, 304 US 439, 82 L Ed 1448 (1938); McGrath v National Assn. of Mfgrs. 344 US 804, 97 L Ed 627 (1952); Danenberg v Cohen, 213 F2d 944 (7th Cir 1954).
As the present amendment of Rule 25(d)(1) eliminates a specified time period to secure substitution of public officers, the reference in Rule 6(b) (regarding enlargement of time) to Rule 25 will no longer apply to these public-officer substitutions.
As to substitution on appeal, the rules of the appellate courts should be consulted.
Subdivision (d)(2).
This provision, applicable in "official capacity" cases as described above, will encourage the use of the official title without any mention of the officer individually, thereby recognizing the intrinsic character of the action and helping to eliminate concern with the problem of substitution. If for any reason it seems necessary or desirable to add the individual's name, this may be done upon motion or on the court's initiative without dismissal of the action; thereafter the procedure of amended Rule 25(d)(1) will apply if the individual named ceases to hold office.
For examples of naming the office or title rather than the officeholder, see Annot, 102 ALR 943, 948--52; Comment, 50 Mich L Rev 443, 450 (1952); cf. 26 USC § 7484. Where an action is brought by or against a board or agency with continuity of existence, it has been often decided that there is no need to name the individual members and substitution is unnecessary when the personnel changes. 4 Moore, supra, para. 25.09, p. 536. The practice encouraged by amended Rule 25(d)(2) is similar.
Notes of Advisory Committee on 1963 amendments to Rules.
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. See, e.g., Anderson v Yungkau, 329 US 482, 67 S Ct 428, 91 L Ed 436 (1947); Iovino v Waterson, 274 F2d 41 (1959), cert denied Carlin v Sovino, 362 US 949, 80 S Ct 860, 4 L Ed 2d 867 (1960); Perry v Allen, 239 F2d 107 (5th Cir 1956); Starnes v Pennsylvania R. R. 26 FRD 625 (ED NY), affd per curiam 295 F2d 704 (2d Cir 1961), cert denied 369 US 813, 82 S Ct 688, 7 L Ed 2d 612 (1962); Zdanok v Glidden Co. 28 FRD 346 (SD NY 1961). See also 4 Moore's Federal Practice para. 25.01 [9] (Supp 1960); 2 Barron & Holtzoff, Federal Practice & Procedure § 621, at 420--21 (Wright ed 1961).
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, § 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. See the Advisory Committee's Note to amended Rule 6(b). See also the new Official Form 30.
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. Cf. Anderson v Yungkau, supra, 329 US at 485, 486, 91 L Ed 436, 67 S Ct at 430, 431, where it was noted under the present rule that settlement and distribution of the estate of a deceased defendant might be so far advanced as to warrant denial of a motion for substitution even though made within the time limit prescribed by that rule. 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.
Notes of Advisory Committee on 1987 amendments to Rules.
The amendments are technical. No substantive change is intended.