upholding the trial judge’s dismissal of a complaint for failure of the plaintiffs administratrix to seek timely substitution of herself as the party plaintiff for more than 2 years after the 1-year period allowed by Mass.R.Civ.P. 25(a)(1)
How later courts described this case
- upholding the trial judge’s dismissal of a complaint for failure of the plaintiffs administratrix to seek timely substitution of herself as the party plaintiff for more than 2 years after the 1-year period allowed by Mass.R.Civ.P. 25(a)(1)
Written by the judges who cited it.
The opinion
Brown, J.
(dissenting). I think that on this record the judge was obliged to find “excusable neglect.” The defendants would have suffered no prejudice had a finding of excusable neglect been made on the administratrix’s behalf and her motion for late substitution been allowed. The defendants received notice of the plaintiffs death from the decedent plaintiffs attorney in early 1992. Afterwards, they either acquiesced in or moved for several trial postponements and also participated in a pre *792 trial conference. In short, the defendants were fully apprised of the plaintiffs death. In the vernacular, “no harm, no foul.”
The majority virtually ignore the generous directive for the Federal rule in Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir. 1993), that “the history of Rule 25(a) and Rule 6(b) makes it clear that the [Federal time period] was not intended to act as a bar to otherwise meritorious actions, and extensions of the period may be liberally granted.”
Moreover, in allowing the motion for substitution initially, the judge implicitly found excusable neglect, which had been the basis for the motion. Later, on remand, he mistakenly came to believe that excusable neglect was irrelevant. Had the judge followed the specific order of the single justice to make findings as to excusable neglect, the administratrix would likely have prevailed on the issue.