Before LUMBARD, WATERMAN and FRIENDLY, Circuit Judges.
The question is whether, in a suit removed to the Southern District of New York because of diversity of citizenship, the District Court could order substitution of an administratrix ad litem of the defendant appointed in New Jersey, under F.R.Civ.Proc. 25(a) (1), quoted in footnote 2 below, although application for this was not made until more than two years after defendant's death. We hold that it could.
The suit was brought by plaintiffs, residents of New York, to recover for personal injuries sustained in Virginia in December, 1954, while passengers in an automobile owned by defendant and operated by his son, who was killed. The action was begun in March, 1955, in the Supreme Court, New York County, by the service of summons in New York on Waterson, a resident of New Jersey. The defendant removed to the District Court. On April 24, 1955, Waterson died intestate. He left no property in New York, other than such rights of exoneration or indemnity, if any, as he may have had from insurers in connection with the claims here asserted. Plaintiffs' attorneys remained ignorant of defendant's death, and the attorney who appeared for Waterson and now appears as attorney of record for the administratrix asserts that he likewise was. In May, 1955, plaintiffs' attorneys served a complaint on the attorney who had appeared for Waterson. The latter accepted service, served an answer, and, in 1956, examined plaintiffs before trial and participated in pre-trial conferences before the District Court. No mention was made of Waterson's death.
It was not until the spring of 1958 that plaintiffs' attorneys learned of this. They promptly took appropriate proceedings in New Jersey for the appointment of an administratrix ad litem and then moved in the District Court for an order substituting her as defendant in this action and granting them leave to serve an amended complaint. Over the objection of the administratrix, the District Court granted the relief sought. On motion made by the administratrix within 10 days thereafter, the District Court amended its order to include the certificate required as a premise for a motion for leave to appeal under 28 U.S.C.A. § 1292(b). This Court granted such leave.
The order substituting the New Jersey administratrix can stand only if plaintiffs are able to establish each of the following propositions:
I. F.R.Civ.Proc. 25(a) (1) permits the substitution of personal representatives of non-resident as well as of resident decedents.
II. A Federal Rule permitting the substitution of the personal representative of a non-resident decedent does not violate the due process clause of the Fifth Amendment.
III. Application of a Federal Rule permitting the substitution off the personal representative of a non-resident decedent in a suit where Federal jurisdiction is based on diversity of citizenship and in a state that has not permitted such substitution, is not beyond the scope of the act, 28 U.S.C.A. § 2072, authorizing the Supreme Court to establish rules for "the practice and procedure of the district courts of the United States" and does not go beyond Federal legislative power.
IV. Plaintiffs are not precluded from effecting substitution under F.R.Civ.Proc. 25(a) (1) because of their failure to act within the two-year time limit there provided.
We shall examine these propositions and set forth our reasons for believing that plaintiffs can carry each of them.
F.R.Civ.Proc. 25(a) (1) permits the substitution of personal representatives of non-resident as well as of resident decedents.
The provisions of F.R.Civ.Proc. 25(a) (1) in regard to substitution must be considered in the light of the development of the law as to the revivor of actions against foreign administrators in ...