FEDERAL INSURANCE COMPANY & another [Note 1] vs. JAMES T. RONAN. [Note 2]

ABRAMS, J. We granted the plaintiffs' application for direct appellate review to consider their claim that Mass. R. Civ. P. 25 (a) (1), 365 Mass. 771 (1974), requires the conclusion that their failure to substitute the defendant's executrix within one year of the approval of her bond falls within

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the excusable neglect provision of Mass. R. Civ. P. 25 (a) (1). [Note 3] We agree. We reverse and remand.

On April 24, 1987, less than four months after the plaintiffs' amended their complaint to add the defendant as a party, he died. On May 15, 1987, counsel for the defendant filed a suggestion of death, which was served on all parties in the case. The suggestion of death did not identify anyone as Ronan's actual or prospective representative. On June 22, 1987, the Probate Court appointed Faith E. Ronan to be the defendant's executrix and approved her bond. Faith Ronan did not, as executrix, appear in the action, notify the parties of the defendant's death, or file a suggestion of death on the record.

In August, 1988, counsel for the defendant moved to dismiss for failure timely to substitute proper parties under rule 25 (a) (1). The plaintiffs filed an opposition to the motion to dismiss and a motion to substitute the defendant's executrix as a defendant. The judge in the Superior Court allowed the motion to dismiss, finding that the plaintiffs were "fully aware" of the defendant's death. He ruled that their knowledge precluded him from finding that their failure to substitute the defendant's executrix was excusable neglect under rule 25 (a) (1). The plaintiffs then filed motions to reconsider the allowance of the motion to dismiss and the denial of the

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motion to substitute. These motions were denied. The plaintiffs unsuccessfully petitioned a single justice of the Appeals Court for relief from the allowance of the motion to dismiss.

Having failed in their efforts to substitute the defendant's executrix, the plaintiffs then moved for leave to file an amended complaint naming the defendant's executrix as a defendant. The trial judge denied this motion, ruling that amendment in these circumstances would "effectively nullify rule 25 . . . ." The plaintiffs again sought relief from a single justice of the Appeals Court. After a single justice denied relief, the plaintiffs moved for the entry of a separate and final judgment under Mass. R. Civ. P. 54 (b), 365 Mass. 824 (1974), in the defendant's favor. This motion was granted, and the plaintiffs appealed.

The plaintiffs argue that rule 25 (a) (1) requires a finding of excusable neglect in this case because the defendant's representative did not undertake to notify them of the defendant's death and did not herself file a suggestion of death. They contend that the suggestion of death filed by the defendant's attorneys was deficient because only the defendant's representative was authorized to file a suggestion under the rule, [Note 4] and because the suggestion filed by the defendant's attorney failed to identify the defendant's representative. Relying on Rende v. Kay, 415 F.2d 983 (D.C. Cir. 1969), and its progeny, [Note 5] decided under Fed. R. Civ. P. 25 (a) (1), the plaintiffs argue that, unless the notice and suggestion of death are made by the deceased's representative (i.e., the executor or administrator), [Note 6] the time limits for filing a motion

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to substitute are tolled. The plaintiffs argue that the Rende court's reasoning, that "[n]o injustice results from the requirement that a suggestion of death identify the representative or successor of an estate who may be substituted as a party for the deceased before Rule 25 (a) (1) may be invoked by those who represent or inherit from the deceased," is required by our rule. Id. at 986. The plaintiffs also point out that some State courts have adopted the rule in Rende. See Varela v. Roman, 156 Ariz. 476, 478 (Ariz. App. 1988) ("the rule plainly contemplates that the suggestion of death be filed by a party or the representative of the deceased party"); Hoffman v. Cohen, 538 A.2d 1096, 1100 (Del. 1988) ("We find the reasoning of Rende . . . not only persuasive but compelling"); Barto v. Weishaar, 101 Nev. 27 (1985); Wick v. Waterman, 143 Wis. 2d 676 (Ct. App. 1988).

Counsel for the defendant argues that the differences between our rule and the Federal rule compel a result in favor of the defendant. Unlike the Federal rule, which provides for dismissal of an action as to the deceased party "[u]nless the motion for substitution is made not later than 90 days after the death is suggested upon the record," Mass. R. Civ. P. 25 (a) (1) provides for dismissal only after the more indulgent interval of "one year after the date of approval of the bond of the representative." Counsel for the defendant contends that the Rende decision resulted from a concern that it would be unfair to compel surviving parties to assume the "burden of locating the representative of the estate within 90 days." Id. at 986. The defendant's counsel argues that the far longer time span contemplated by our rule renders the Rende court's solicitude for surviving parties unnecessary, because surviving parties informed of a death (as were the plaintiffs here) have one full year to discover the identity of the decedent's

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representative. Finally, the defendant's counsel directs our attention to several State courts that have rejected the rule in Rende. See Brown v. Wheeler, 437 So. 2d 521 (Ala. 1983) (unlike Federal rule, corresponding Alabama rule does not require that suggestion of death be filed by representative); Farmers Ins. Group v. District Court of the Second Judicial Dist., 181 Colo. 85, cert. denied sub nom. Lambert v. Supreme Court of Colo., 414 U.S. 878 (1973). Mullis v. Bone, 143 Ga. App. 407 (1977); LesCarbeau v. Rodrigues, 109 R.I. 407, 410 (1972) (decided under Rhode Island rule imposing no time limitation on when motion to substitute must be made). Cf. King v. Tyree's of Tampa, Inc., 315 So. 2d 538 (Fla. Dist. Ct. App. 1975). In essence, the defendant's counsel urges us to adopt the view that "a plaintiff's attorney who receives notification of the defendant's death has the responsibility to promptly initiate the necessary inquiries to determine the identity of a person to be substituted for the deceased defendant." Farmers Ins. Group, supra at 90.

Although we agree with the defendant's attorney that generally the burden is on counsel "to attend to the progress of pending matters," Brown v. Quinn, 406 Mass. 641, 644 (1990), the plain language of our rule requires a conclusion that the burden is on the representative of the deceased party. The last sentence of rule 25 (a) (1) (not found in its Federal counterpart) reads as follows: "If the court finds that the representative of the deceased party has failed within a reasonable period of time after the date of the approval of his bond to notify in writing the surviving party of the decedent's death and to file a suggestion of death upon the record it shall find excusable neglect for purposes of this rule and Rule 6 (b)" [Note 7] (emphasis supplied). The Reporters' Notes to Mass. R. Civ. P. 25 (Mass. Ann. Laws, Rules of Civil Procedure 653 [Law. Co-op. 1982]) reinforce the mandatory nature

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of this procedural requirement: "Failure on the part of the decedent's representative to notify the surviving party within a reasonable time from the approval of the bond and to file a suggestion of death upon the record requires a finding of excusable neglect" (emphasis supplied).

The plaintiffs, therefore, are correct in arguing that the plain language of our rule imposes an even higher burden on the representative of a deceased litigant than does the Federal rule. Indeed, the rule appears to follow the holding in Rende in some respects [Note 8] (although it provides an even longer time in which surviving parties may move to substitute). Were there any ambiguity, we would be inclined to accept the argument of the defendant's counsel, but there is none. We do not depart from the plain, unambiguous, and mandatory language of any rule in the service of a vague notion of the spirit and purpose of the rule. See Mellinger v. West Springfield, 401 Mass. 188, 192-193 (1987) (following plain language of Mass. R. Civ. P. 15, 365 Mass. 824 [1974]). Under our rule, "[t]he burden [on the decedent's representative] of providing formal notice is slight." National Equip. Rental, Ltd. v. Whitecraft Unlimited, Inc., 75 F.R.D. 507, 510 (E.D.N.Y. 1977). The judgment is vacated, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.