Nevada Rules of Civil Procedure; Rule 25

Nevada Rules of Civil Procedure

Rule 25. Substitution of Parties

(a) Death.

(1)    Substitution if the Claim Is Not Extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent’s successor or representative. If the motion is not made within 180 days after service of a statement noting the death, the claims by or against the decedent must be dismissed.

(2)    Continuation Among the Remaining Parties. After a party’s death, if the right sought to be enforced survives only to or against the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties. The death should be noted on the record.

(3)    Service. A motion to substitute must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner.

(b)   Incapacitated Persons. If a party becomes incapacitated, the court may, on motion, permit the action to be continued by or against the party’s representative. The motion must be served as provided in Rule 25(a)(3).

(c)    Transfer of Interest. If an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party. The motion must be served as provided in Rule 25(a)(3).

(d)   Public Officers; Death or Separation From Office. An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer’s successor is automatically substituted as a party. Later proceedings should be in the substituted party’s name, but any misnomer not affecting the parties’ substantial rights must be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution.

Advisory Committee Note—2019 Amendment

The amendments generally conform Rule 25 to FRCP 25.

Subsection (a). Rule 25(a) works in conjunction with NRS 7.075, which requires an attorney whose client dies to file a notice of death and a motion for substitution within 90 days after the death. Under Rule 25(a)(1), any party or the decedent’s successor or representative has 180 days after service of a notice of death or a statement noting the death in which to file a motion for substitution. Although Rule 25(a)(1) changes the time to file the motion for substitution from 90 to 180 days after service of a statement noting a party’s death, it otherwise generally tracks FRCP 25(a)(1). As with FRCP 6(b) and 25(a)(1), a motion for substitution under Rule 25(a)(1) is not among the motions Rule 6(b)(2) excludes from its extension-of-time provisions. The district court thus has discretion, under Rule 6(b)(1), to enlarge the time to file a motion to substitute, despite the use of the word “must” in NRCP 25(a)(1). See 7C Charles Alan Wright, Arthur Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 1955, at 681-84 (3d. ed. 2007) (noting that, despite the use of “must” in FRCP 25(a), “[dismissal is not mandatory” when a party cannot file a motion for substitution within the allotted time; under FRCP 6, “the court may extend the period for substitution if a request is made before” the period expires and “also may allow substitution on motion made after expiration of the [substitution period on a showing that the failure to act earlier was the result of excusable neglect, although an extension of time also may be refused if the court find the reasons for the delay to be inexcusable”). The remaining parties may also seek to continue the action in a manner not involving substitution of the decedent’s successor or representative.

Subsections (b), (c), and (d). The amendments conform Rules 25(b),(c), and (d) to the corresponding federal rule. Former NRCP 25(d)(2) is moved to Rule 17(d).

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