The decedent died of mesothelioma and the plaintiff, his widow, proceeded on the claims that had been filed prior to his death; the plaintiff did not substitute herself as special administrator of his estate. Defendant Owens-Illinois filed a notice of death pursuant to federal rules, then filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 25(a)(2), requiring timely substitution of a proper party. Defendants 3M and Weyerhaeuser filed motions to join. The plaintiff then dismissed Owens-Illinois, and 3M and Weyerhaeuser filed no further indication that they were pursuing the motion to dismiss. The district court denied the motion to dismiss because the defendants failed to file a reply brief or oppose the plaintiff’s motion for leave to file a third amended complaint naming herself as special administrator; further, the defendants continued to defend the plaintiff’s claims after the decedent died. The court stated: “After [decedent’s] death, 3M and Weyerhaeuser continued to defend [Plaintiff’s] claims. Dismissing the case, and allowing her to re-file would only delay the ongoing litigation, resulting in unnecessary inefficiencies and delay for both the parties and the court. Keeping this case on track will allow the matter to be resolved more quickly and inexpensively.”
The court also allowed the plaintiff to file her third amended complaint, which substituted her as special administrator and added a wrongful death claim. The court found no bad faith on the part of the plaintiff’s counsel for not filing promptly for substitution, but strongly encouraged attorneys to assure that all required court filings are timely, particularly the pleadings at issue here.