District court did not abuse its discretion in allowing dismissal without prejudice of lawsuit when plaintiff died, after his widow filed a new lawsuit in state court rather than timely substituting in her husband’s place. Under Federal Rule of Civil Procedure 25(a)(1), a new party must be substituted for a party that has died during the pendency of a case. The substitution should be made within 90 days of notice of death. If no new party is substituted, the district court must dismiss the case as to the deceased party. Here, rather than substitute in in place of her deceased husband in this case which defendants had removed to federal court, wife filed a new case in state court. Defendants moved for dismissal with prejudice of the federal suit; wife cross-moved for dismissal without prejudice or extension of the 90 day period for substitution. Held, the district court has wide discretion in extending the 90 day substitution period even after it has expired or in dismissing with or without prejudice. Here the district court did not abuse that discretion in dismissing the federal suit without prejudice.
Ninth Circuit Court of Appeals (Owens, J.); March 9, 2017; 2017 WL 929203