Julie A. Leighton v. Herbert C. Bennett

Summary

The South Dakota Supreme Court affirmed dismissal of Julie Leighton's personal injury action after she failed to move for substitution within 90 days after service of a notice of Herbert Bennett's death. The court held that SDCL 15-6-25(a)(1) does not require the notice of death to be served on the decedent's estate or personal representative to trigger the substitution deadline. The court also held that the circuit court did not abuse its discretion in denying an enlargement of time because Leighton failed to provide a sufficient factual basis for excusable neglect.

Holdings

1. Under SDCL 15-6-25(a)(1), the 90-day period for seeking substitution begins when a notice of death is served in accordance with the rule; service on the deceased party's estate or personal representative is not required to trigger the period.
2. The circuit court did not abuse its discretion in denying enlargement because Leighton presented no factual showing establishing excusable neglect.

Questions Presented

1. Whether SDCL 15-6-25(a)(1)'s 90-day period for substitution began when Bennett's defense counsel served the notice of death on Leighton without serving Bennett's estate or personal representative.
2. Whether the circuit court abused its discretion by denying Leighton's post-deadline motion for enlargement of time based on excusable neglect.

Disposition

affirmed