Joseph Anderson, Appellant, v. Republic Motor Inns, Inc., T/a Holiday Inn of Lancaster, 444 F.2d 87 (3d Cir. 1971)

This appeal challenges an order of the district court dismissing the complaint for failure of the plaintiff to comply with F.R.Civ.P. 25(a) (1), providing that "unless the motion for substitution [after death of a party] is made not later than 90 days after the death is suggested upon the record * * *, the action shall be dismissed as to the deceased party." The suggestion of the death of the plaintiff was filed on July 2, 1969, and, although no document entitled "Motion for Substitution" was filed within 90 days of that date, the plaintiff filed a pre-trial memorandum on August 12, 1969, containing this language under

"D. PLEADINGS":

"Because of the death of the plaintiff, * * * the wife (as executrix of his estate) is to become the substitute plaintiff."

Under the circumstances of this case, we have concluded that this language is sufficient to constitute the motion contemplated by F.R.Civ.P. 25(a) (1), supra.¹ 

We take this opportunity to advise the members of our Bar that we should not have to state that both the Federal Rules of Civil Procedure and the Local Rules of the district courts should be complied with so that time-consuming and expensive litigation such as that resulting in this appeal can be avoided. We emphasize that the foregoing provision of the pre-trial memorandum was not called to the attention of the district court and, hence, there is no room for any criticism whatever in its handling of this matter. However, after consideration of the entire record, and for the reasons stated above, we have decided that the above-mentioned May 1970 order of dismissal should be vacated and plaintiff should be granted the opportunity to promptly submit an order amending the caption and complaint to substitute Mrs. Anderson, Executrix under the will of Joseph Anderson, as plaintiff in this action.²  We emphasize that the unusual facts of this case lead us to vacate the May 1970 order of dismissal in the interests of justice. We also emphasize that this is an extraordinary case, and that departure from the requirements of the Federal Rules is not to be permitted routinely.

An order will be entered vacating the above-mentioned May 1970 order of the district court and the case will be remanded for proceedings consistent with the foregoing opinion. The costs of this appeal shall be paid for by counsel for appellant personally.