Failure To File Revised Pleading After Defendant’s Death Results In Dismissal

Under Fed. R. Civ. P. 25(a), if a party dies and the claim is of a type that survives, the relevant party must file a motion for substitution within 90 days. Russell v. City of Milwaukee, 338 F.3d 662 (7th Cir. July 28, 2003), illustrates that, although a district court has the discretion to allow a late filing, it will not be reversed for enforcing the Rule and dismissing the case instead. The Seventh Circuit was not persuaded by plaintiff’s argument that the clock did not start to run because notice of death was served on him but never filed with the court.