In Re Baycol Products Litigation

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-1964
___________

In re: Baycol Products Litigation *
_______________________ *
*
Melinda Torres, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Bayer Corporation, *
*
Appellee. *
__________

Submitted: March 11, 2010
Filed: August 10, 2010
___________

Before RILEY, Chief Judge,1 BRIGHT and WOLLMAN, Circuit Judges.
___________

RILEY, Chief Judge.

Melinda Torres filed an action against Bayer Corporation (Bayer) in Texas
state court. Bayer removed the action to federal court. Three years later, Torres died.
Torres’s two daughters, Nicole Hampton and Stephanie O’Neal (collectively,
appellants), moved to substitute for their mother as plaintiffs in this case. The district

1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
court denied the motion. Hampton and O’Neal appeal the district court’s denial, and
we reverse and remand to the district court for an evidentiary hearing.

I. BACKGROUND
On April 16, 2003, Torres filed her original petition (later amended) alleging,
among other things, she was a resident of Texas when her physician issued her a
prescription for Baycol, a drug manufactured and sold by Bayer. Torres claimed the
drug caused her “serious and permanent damaging injuries,” and sued Bayer for
(1) negligence in manufacturing the drug, and (2) strict products liability for a failure
to warn and breach of warranty of merchantability. Bayer removed the case to the
United States District Court for the District of Minnesota based upon diversity
jurisdiction under 28 U.S.C. § 1332(a). Torres’s case then was transferred to the “In
re: Baycol Products” multi-district litigation. During the course of the litigation,
Torres moved to California, where she died on or about April 3, 2007.

On April 5, 2007, Bayer filed a Fed. R. Civ. P. 25(a) notice, suggesting Torres
had died. On July 10, 2007, Bayer filed a motion to dismiss “on the grounds that Ms.
Torres [wa]s deceased and no motion to substitute parties was filed within 90 days as
required by Federal Rule of Civil Procedure 25(a)(1).” On July 25, 2007, Torres’s
counsel filed an unopposed motion for enlargement of time to join the proper parties.

Torres’s counsel filed a motion to substitute as plaintiffs “Nicole Hampton and
Stephanie O’Neal, the natural daughters and sole heirs of the Deceased Plaintiff,
Melinda Torres.” Torres’s counsel included with the motion a memorandum of law
and a joint “affidavit of heirship” by Hampton and O’Neal. In their affidavit,
Hampton and O’Neal swore they were Melinda Torres’s “natural daughters” and only
children. The district court found appellants “failed to demonstrate [they had] the
legal right or authority to pursue Plaintiff’s claims on her behalf,” and provided
appellants with 60 days “to submit evidence demonstrating that Nicole Hampton and
Stephanie O’Neal are proper parties under [Fed. R. Civ. P.] 25.”

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 Appellants responded to the district court’s order by filing a “proof of heirship
and/or status as distributees,” along with a copy of appellants’ birth certificates, and
separate affidavits. The “proof of heirship” declared Torres died without a will,
survived only by appellants—Torres’s natural daughters, sole heirs, and sole
distributees of Torres’s estate. The filing further stated there was no need for an
administration of Torres’s estate because the pending action against Bayer was the
only asset the estate possessed. Thus, appellants asked the district court to “accept the
proof of heirship and [appellants’] status as sole distributees of” Torres’s estate
“without requiring an administration of” the estate. The attached affidavits stated
Torres died without a will, appellants were Torres’s daughters, and appellants could
not afford the cost of pursuing a probate administration proceeding in California. The
appellants both asked the district court to “enter an [o]rder recognizing our status as
sole heirs and distributees of our mother” so they could substitute as plaintiffs in the
case.

Once again, the district court found appellants’ evidence insufficient to
establish appellants were the proper parties for purposes of substitution. The district
court declared “an affirmative statement that [Torres] had no other heirs” was
“[n]otably absent from [appellants’] affidavits.” The court was “particularly
concerned by the lack of evidence as to . . . Torres’[s] marital status” at the time of her
death. The district court concluded,

Without affirmative evidence Torres has no other heirs or that no person
has a superior right to commence the action or proceeding or to be
substituted for the decedent in a pending action, see Cal. Code of Civ. P.
§ 377.32(5) and (6), the Court is not convinced [appellants] are proper
parties for substitution.

The district court granted appellants another 60 days “to submit evidence establishing
that [appellants] are proper parties under Rule 25. Specifically, . . . that [appellants]

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are the sole heirs to . . . Torres’[s] estate, and that no other person has a superior right
to be substituted in this action.”

Appellants responded to the district court’s order by submitting another filing
for “further submission of proof of heirship and/or status as distributees.” Appellants
included with their filing (1) a letter their mother had written, presumably many years
before her death, stating appellants were her only daughters, appointing a guardian
over them, and noting the children grew up without a father; (2) an affidavit from a
relative stating the letter was in Torres’s handwriting; (3) a printed program from
Torres’s memorial service; and (4) appellants’ joint affidavit. In their joint affidavit,
appellants declared they were “the sole descendants of Melinda Torres and therefore
the sole [d]istributees of her right to bring a law suit for personal injuries she suffered
while she was alive and/or [for] her wrongful death.”

Absent from appellants’ joint affidavit was any discussion of their mother’s
marital status at the time of her death. The attached program from Torres’s memorial
service did include an obituary. The obituary stated Torres left behind her daughters,
Hampton and O’Neal, and named several other relatives, but made no mention of a
spouse. Appellants requested, if the district court found the filing and attached
evidence insufficient to prove appellants’ status as distributees, the “[c]ourt hold an
evidentiary hearing to resolve any claims or suspicions by any party or authority that
additional heirs of Melinda Torres exist.”

On November 12, 2008, the district court denied appellants’ motion to
substitute as plaintiffs for their deceased mother, Melinda Torres. The district court
noted appellants had previously “failed to provide sufficient proof pursuant to
California law, that they had the legal right to pursue [Torres’s] claims.” The district
court added, “In their latest submissions, the prospective plaintiffs did not submit any
additional evidence addressing [Torres’s] marital status or whether [Torres] had
additional heirs besides [appellants].” The court then granted Bayer’s motion to

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dismiss Torres’s case. Appellants moved for a new hearing, which the district court
construed as a motion for reconsideration and denied. Hampton and O’Neal appeal
the district court’s denial of their motion for substitution and their motion to
reconsider. Appellants also move to substitute as parties in this appeal.

II. DISCUSSION
A. Standard of Review and Applicable Law
Appellants argue the district court erred by requiring appellants to prove more
than was necessary to satisfy the requirements of Fed. R. Civ. P. 25(a), and in denying
their motion to substitute as plaintiffs. Pursuant to Fed. R. Civ. P. 25(a)(1), “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.” Id. “We review district court determinations regarding
substitution for an abuse of discretion.” ELCA Enters. v. Sisco Equip. Rental & Sales,
Inc., 53 F.3d 186, 190 (8th Cir. 1995). We review de novo the district court’s
interpretation of the law and Federal Rules of Civil Procedure. See Ind. Lumbermens
Mut. Ins. Co. v. Timberland Pallet & Lumber Co., 195 F.3d 368, 374 (8th Cir. 1999).

B. History of Fed. R. Civ. P. 25(a)(1)
Federal Rule of Civil Procedure 25 was promulgated by the Supreme Court in
1938. Rule 25(a)(1) was derived, in part, from 28 U.S.C. § 778, which provided,
“When either of the parties, whether plaintiff or petitioner or defendant . . . dies before
final judgment, the executor or administrator of such deceased party may, in case the
cause of action survives by law, prosecute or defend any such suit to final judgment
. . . .” 28 U.S.C. § 778 (1934), repealed by Revision Act of June 25, 1948, c. 646, 62
Stat. 993; see Fed. R. Civ. P. 25 advisory committee note to subdivision (a)(1). In
contrast, Fed. R. Civ. P. 25(a)(1), both today and as initially promulgated, permits the
decedent’s successor or representative to move for substitution. When 28 U.S.C.
§ 778 was repealed as superseded by Fed. R. Civ. P. 25, the historical requirement that
only an administrator or executor of a decedent’s estate could substitute as plaintiff

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was removed, and under the new federal rules, the proper party for substitution is the
decedent’s successor or representative. See Sinito v. U.S. Dep’t of Justice, 176 F.3d
512, 516 (D.C. Cir. 1999) (noting “the addition of the word ‘successor’ to the rule
means that a proper party need not necessarily be the appointed executor or
administrator of the deceased party’s estate”).

Despite this change, federal courts often strictly construed Fed. R. Civ. P. 25
to preclude substitution of parties. See, e.g., Gertler v. United States, 18 F.R.D. 307,
308-09 (S.D.N.Y. 1955). As a result, in 1963, the Supreme Court amended Rule
25(a)(1). “The purpose of the 1963 amendments to Rule 25, which replaced a harsher
prior rule regarding proper party plaintiffs, was ‘to liberalize the rule and to allow
flexibility in substitution of parties.’” Sinito, 176 F.3d at 516 (internal marks omitted)
(quoting McSurley v. McClellan, 753 F.2d 88, 98-99 (D.C. Cir. 1985) (per curiam));
see also Boggs v. Dravo Corp., 532 F.2d 897, 900 (3d Cir. 1976) (similar).

The language of Fed. R. Civ. P. 25(a)(1) is permissive. Currently, Rule 25
provides, “If a party dies and the claim is not extinguished, the court may order
substitution of the proper party.” This court has noted, “The decision whether to
substitute parties lies within the discretion of the trial judge and he may refuse to
substitute parties in an action even if one of the parties so moves.” Froning’s, Inc.v.
Johnston Feed Serv., Inc., 568 F.2d 108, 110 n.4 (8th Cir. 1978). However, the
Advisory Committee on the 1963 amendments to Fed. R. Civ. P. 25 intended that
motions to substitute be freely granted. See Fed. R. Civ. P. 25, advisory committee
note of 1963 (“A motion to substitute made within the prescribed time will ordinarily
be granted, but under the permissive language of the first sentence of the amended rule
(‘the court may order’) it may be denied by the court in the exercise of a sound
discretion if made long after the death . . . and circumstances have arisen rendering it
unfair to allow substitution.”).

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 With this historical context in mind, we consider appellants’ claim that they are
the proper parties for substitution. It is well-established that a decedent’s legal
representative may substitute as plaintiff for the decedent in a cause of action. See,
e.g., Mallonee v. Fahey, 200 F.2d 918, 919 (9th Cir. 1952); Graham v. Henderson,
224 F.R.D. 59, 64 (N.D.N.Y. 2004). It is not well-established, however, who may be
considered the decedent’s “successor” under Rule 25(a)(1), and therefore, also a
proper party for purposes of substitution.

C. Relevant Cases
In a groundbreaking case, Rende v. Kay, 415 F.2d 983, 984 (D.C. Cir. 1969),
the defendant died during litigation in the district court. The defendant’s attorney
continued to defend the action and filed a suggestion of death pursuant to Fed. R. Civ.
P. 25(a)(1). Id. The defendant’s will was filed in the state court, but no legal
representative was appointed. Id. Time passed, and the defendant’s attorney moved
to dismiss the action because the plaintiffs had not moved to substitute a proper party
for the defendant within the time allotted. Id. The Rende court considered the issue
of proper parties, recognizing that although not applicable to the case, the addition of
the word “successor” in Rule 25(a)(1) would encompass “the distributee of an estate
that had been distributed” as a proper party. Id. at 985. The court continued by noting
the plaintiffs’ attorney knew the will had been submitted to probate, but had no
knowledge of who would be appointed as the estate’s legal representative. The court
observed,

The tactic of the defendant’s attorney would place on plaintiff the
burden, where no conventional representative was appointed for the
estate in probate court, of instituting machinery in order to produce some
representative of the estate ad litem, pending appointment of the
representative contemplated by law of the domicile of the deceased.

Id. at 986. This, the court reasoned, was contrary to the purpose of the amendments
to Rule 25, which were “intended to dispel unwarranted rigidity and allow more

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flexibility in substitution.” Id. For these reasons, the court concluded that “a
suggestion of death [should] identify the representative or successor of an estate who
may be substituted as a party for the deceased before Rule 25(a)(1) may be invoked
by those who represent or inherit from the deceased.” Id.

The Rende case established several principles which have been adopted and
followed in later cases. See, e.g., Gronowicz v. Leonard, 109 F.R.D. 624, 626
(S.D.N.Y. 1986) (“A distributee of an estate is a ‘proper party’ under Rule 25(a) if the
estate of the deceased has been distributed at the time the motion for substitution has
been made.”); Ashley v. Ill. Cent. Gulf R.R. Co., 98 F.R.D. 722, 724 (S.D. Miss.
1983) (noting the “‘[s]uccessors’ would be the distributees of the decedent’s estate if
his estate had been closed”). Many years after Rende, the D.C. Circuit expanded upon
the Rende principles with McSurely, 753 F.2d at 98-99. In McSurely, the plaintiffs
sued multiple defendants, two of whom later died. Id. at 97. Both decedents had wills
which named their wives as executor and provided for the wives to receive all assets.
Id. However, the wills were never probated, and the wives were never designated
“legal representative[s]” of their husbands’ estates. Id. The defendants claimed the
widows could not be the proper parties for substitution. Id. at 98. The court rejected
this claim, deciding the plaintiffs should not be required to “institut[e] machinery in
order to produce some representative ad litem,” in contravention of the purpose of
amended Rule 25(a)(1) to permit more flexibility in substitution. Id. The court
elected to construe Rule 25(a)(1) equitably and sensibly, and declared, despite the
absence of a formal appointment or probate of the decedents’ estates, the widows were
the proper parties for substitution. Id. at 98-99. See also Kilgo v. Bowman Transp.,
Inc., 87 F.R.D. 26, 27 (N.D. Ga. 1980) (reaching a similar result).

In Hardy v. Kaszycki & Sons Contractors, Inc., 842 F. Supp. 713, 716
(S.N.D.Y. 1993), a district court evaluated a claim by a widow that she was not the
proper party to substitute for her husband as the defendant in an ongoing action. The
widow first claimed the estate had no assets; a claim the district court rejected because

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the decedent’s estate included two insurance policies in favor of the “estates, heirs,
and personal representative” of the decedent. Id. The district court then rejected the
widow’s claim that she was not the representative of the estate, emphasizing,
“Although [the decedent] died intestate, it is undisputed that [the widow] is the
sole—or at least the primary—distributee of her husband’s estate.” Id. As a result,
the court refused to permit the case to be prolonged any further, and found the widow
to be the proper party for substitution under the unique facts of the case. Id. at 716-17
& n.4.

Together, these cases demonstrate, under certain circumstances, a person may
be a “successor” under Rule 25(a)(1) if she is (1) the primary beneficiary of an already
distributed estate, see Rende, 415 F.2d at 985; (2) named in a will as the executor of
the decedent’s estate, even if the will is not probated, see McSurely, 753 F.2d at 98;
or (3) the primary beneficiary of an unprobated intestate estate which need not be
probated, cf. Hardy, 842 F. Supp. at 716.

D. Procedural v. Substantive
“It is, of course, well-settled that in a suit based on diversity of citizenship
jurisdiction the federal courts apply federal law as to matters of procedure but the
substantive law of the relevant state.” Hiatt v. Mazda Motor Corp., 75 F.3d 1252,
1255 (8th Cir. 1996) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). Rule
25(a)(1) is a procedural rule. See Downie v. Pritchard, 309 F.2d 634, 635 (8th Cir.
1962) (“Rule 25(a)(1) is merely a formula used to fascilitate the closing of a
decedent’s estate within a reasonable time. Surely this is a rule of procedure.”). “It
does not provide for the survival of rights or liabilities but merely provides the method
by which the original action may proceed if the right of action survives.” Id. (quoting
Pritchard v. Downie, 201 F. Supp. 893, 897 (E.D. Ark. 1962)). Thus, in a diversity
case, we look to state substantive law to determine whether the cause of action
survives. See Ransom v. Brennan, 437 F.2d 513, 520 (5th Cir. 1971). Neither party
contends Torres’s causes of action were extinguished upon her death. Assuming then,

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without deciding, that Torres’s claims continued, we must consider whether the
district court correctly determined appellants were not proper parties for substitution.

Rule 25(a) is a procedural rule setting forth the proper method for the
substitution of parties, and federal courts must apply federal rules, rather than state
law, in determining the proper procedure for substitution following a party’s death.
See Servidone Const. Corp. v. Levine, 156 F.3d 414, 416 (2d Cir. 1998). Cf. Kuelbs
v. Hill, ___ F.3d ___, ___, No. 09-2697, 2010 WL 2977412, at *3-4 (8th Cir. July 30,
2010) (discussing substitution under Rule 25(b) for an incompetent party and the real
party in interest under Rule 17(a)). This is true even if the court must apply state
substantive law, see Servidone Const. Corp., 156 F.3d at 416, or where the state
procedural rules are inconsistent with federal law, see Ransom, 437 F.2d at 520.
While it is often said that Rule 25 is strictly procedural, see, e.g., Roberson v. Wood,
500 F. Supp. 854, 858 (S.D. Ill. 1980), some courts and commentators have
recognized, in many instances, state law governs who can be a “representative” or
“successor,” and therefore, who can qualify as a proper party for substitution under
Rule 25(a)(1). See, e.g., Madison v. Vintage Petro., Inc., 872 F. Supp. 340, 341-43
(S.D. Miss. 1994) (applying state law to determine the proper party for substitution);
6 James Wm. Moore et al., Moore’s Federal Practice ¶ 25.12[3] (3d ed. 2010)
(extrapolating, without citation, that “[w]hether a person is a proper party is . . . a
substantive rather than procedural question and is determined according to state law”).
Because we conclude California law applies to the limited substantive question of who
may constitute a successor in this case, we review the relevant California Code
provisions.

E. California Law on Substitution
Section 377.31 of the California Code of Civil Procedure states, “On motion
after the death of a person who commenced an action or proceeding, the court shall
allow a pending action or proceeding that does not abate to be continued by the
decedent’s personal representative or, if none, by the decedent’s successor in interest.”

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This provision is similar to Fed. R. Civ. P. 25(a)(1). The California Code of Civil
Procedure, unlike the Federal Rules, provides a definition of who may be considered
a decedent’s successor. “For the purposes of this chapter, ‘decedent’s successor in
interest’ means the beneficiary of the decedent’s estate or other successor in interest
who succeeds to a cause of action or to a particular item of the property that is the
subject of a cause of action.” Cal. Civ. Proc. Code § 377.11. Together, these
California code provisions answer the substantive question of who is a “successor”
and thereby, a proper party for substitution in a cause of action. Under California law,
a successor is defined as “the beneficiary,” and for purposes of Fed. R. Civ. P.
25(a)(1), this is the end of the inquiry under California law.

As a procedural matter, in California a “successor” who seeks to continue a
decedent’s cause of action must execute and file an affidavit or a declaration setting
forth all of the following:

(1) The decedent’s name.

(2) The date and place of the decedent’s death.

(3) “No proceeding is now pending in California for administration of
the decedent’s estate.”

(4) If the decedent’s estate was administered, a copy of the final order
showing the distribution of the decedent’s cause of action to the
successor in interest.

(5) Either of the following, as appropriate, with facts in support thereof:

(A) “The affiant or declarant is the decedent’s successor in
interest . . . and succeeds to the decedent’s interest in the action or
proceeding.”

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 (B) “The affiant or declarant is authorized to act on behalf of the
decedent’s successor in interest . . . with respect to the decedent’s
interest in the action or proceeding.”

(6) “No other person has a superior right to commence the action or
proceeding or to be substituted for the decedent in the pending action or
proceeding.”

(7) “The affiant or declarant affirms or declares under penalty of perjury
under the laws of the State of California that the foregoing is true and
correct.”

Cal. Civ. Proc. Code § 377.32. The district court erred in relying upon this California
procedural statute when it first declared, “Without affirmative evidence [Torres] has
no other heirs or that no person has a superior right to commence the action or
proceeding or to be substituted for the decedent in a pending action . . . , the Court is
not convinced that [appellants] are the proper parties for substitution.” In its next
order, the district court denied the motion to substitute and dismissed the action,
finding appellants had failed to prove Torres was not married at the time of her death,
and that appellants were the only heirs.

The procedural nature of Cal. Civ. Proc. Code § 377.32 is readily apparent
under an Erie analysis. Although two possible tests may be applied to determine
whether this California Code provision is procedural, both tests lead to the same
conclusion. First, under Hanna v. Plumer, 380 U.S. 460 (1965), and its progeny, the
Supreme Court has made clear “that if a matter is covered by a Federal Rule the
federal courts must apply the Rule without regard to whether the matter might
arguably be labeled as substantive or procedural.” Hiatt, 75 F.3d at 1258. In this case,
Fed. R. Civ. P. 25(a)(1) governs the proper procedure for motions to substitute, and
we will not apply a contrary or more restrictive state rule setting forth how a motion
should be drafted, or what must be addressed in a supporting affidavit. See Hanna,
380 U.S. at 471; Servidone Const. Corp., 156 F.3d at 416; Ransom, 437 F.2d at 520.

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Under this analysis, the district court was bound to apply the Federal Rule unless it
contravened the Rules Enabling Act or the Constitution, see Hanna, 380 U.S. at 470-
71. The Federal Rule is presumptively valid. See Burlington N. R.R. Co. v. Woods,
480 U.S. 1, 6 (1987).

We reach the same result under a traditional Erie analysis. In circumstances
where “there is no direct conflict between the Federal Rule and the state law, the
Hanna analysis does not apply.” Walker v. Armco Steel Corp., 446 U.S. 740, 752
(1980). One could argue there is no direct conflict between Fed. R. Civ. P. 25(a)(1)
and the California Code provision because the Federal Rule does not contain an
affidavit requirement, and therefore, the scope of the Federal Rule is more limited than
the California Code Section at issue. See Hanna, 308 U.S. at 470-71. Under this
scenario, we must determine whether the California Code provision is substantive or
procedural, and to do so, we apply the outcome determinative test first articulated in
Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 109-10 (1945). “The ‘outcome-
determination’ test . . . cannot be read without reference to the twin aims of the Erie
rule: discouragement of forum-shopping and avoidance of inequitable administration
of the laws.” Hanna, 308 U.S. at 468.

In Iovino v. Waterson, 274 F.2d 41, 45 (2d Cir. 1959), the Second Circuit
considered whether Fed. R. Civ. P. 25(a)(1) should permit a foreign administrator to
substitute for a decedent despite state law prohibiting the substitution. The Second
Circuit declared, “We are dealing with a subject-matter which, though ‘outcome
determinative’ has long been regarded as procedural by lawyers, by legislators, and
by the Supreme Court itself.” Id. at 48. The Iovino court continued, “it would seem
highly unlikely that differences in Federal and state rules as to revivor would lead
to. . . forum shopping . . . .” Id. at 48 n.5. We agree with the Second Circuit’s
conclusion. When determining whether application of a particular state rule would
be outcome determinative and impact the choice of forum, courts must look to
whether application of the federal rule would impact a litigant’s choice of either a

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state or federal forum at the outset of the litigation. See Hanna, 308 U.S. at 469. We
believe it is highly unlikely that plaintiffs, when determining whether to file an action
in state or federal court, or defendants, when determining whether to remove an action
from state to federal court, will ponder the likelihood of the death of a party and
whether it would be easier for the party’s decedent to file a motion for substitution
under state or federal law. Further, under the interest-balancing approach advocated
in Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525, 537-38 (1958), we conclude
the interests of federal courts in regulating the proper procedure for substitution and
ensuring decedent’s interests are protected outweigh California’s interest in ensuring
specific language is used in an affidavit. See Sinito, 176 F.3d at 515 (observing “[t]he
federal courts have institutional interests of their own in regulating the substitution of
qualified parties”). Thus, regardless of which application of the Erie doctrine we use,
under our Rule 25(a) analysis we conclude Cal. Civ. Proc. Code § 377.32 is a state
procedural rule.

The district court abused its discretion in relying upon Cal. Civ. Proc. Code
§ 377.32, a state procedural rule, and in dismissing this action without conducting an
individualized analysis under the unique facts of this case. Section 377.32 of the
California Code of Civil Procedure does not provide who is a proper party for
purposes of substitution, but how someone, already defined as a “successor,” should
proceed in order to continue a pending action. The question of who is a proper party
is a substantive issue, for which we must rely upon state law. In contrast, the method
by which one must proceed as the successor to establish a right to substitution is
procedural, and is governed by federal law. See U.S. for Use of Acme Granite & Tile
Co. v. F.D. Rich Co., 441 F.2d 1143, 1144 (9th Cir. 1971) (per curiam); Ransom, 437
F.2d at 520 (quoting 3B Moore’s Federal Practice at ¶ 25.04) (“Since Rule 25 is a
valid procedural rule, it therefore follows that the terms of Rule 25, and federal court
decisions interpreting its meaning, control the manner of effecting substitution in the
federal courts. And conflicting state law dealing with the manner of effecting
substitution in state court should not prevail over the requirements of Rule 25.”).

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 F. Instructions on Remand
In the typical case, the proper party would be “the representative of the
decedent’s estate who has been appointed under state law.” 6 James Wm. Moore et
al., Moore’s Federal Practice ¶ 25.12[3] (3d ed. 2010). Where there is no appointed
representative, and no practical need to seek one, the district court should conduct a
more detailed analysis.2 Because the purpose of Rule 25(a)(1) is to protect the estate
of the decedent, district courts must ensure only “those individuals who can
adequately represent the interests of the deceased party” are substituted under the
Rule. Sinito, 176 F.3d at 516. District courts should therefore look at the facts and
circumstances of each case and then determine whether the person moving to
substitute will sufficiently prosecute or defend the action on the decedent’s behalf.

On remand, the district court here should hold an evidentiary hearing to
determine whether appellants are proper parties for substitution in this case. The
district court must first look to California law to answer the substantive question of
whether appellants qualify as successors. Section 377.11 of the California Code of
Civil Procedure defines a successor in interest as “the beneficiary of the decedent’s
estate.” Thus, the district court must determine whether appellants qualify as “the
beneficiar[ies]” under California law.

Having resolved the issue of who may be a proper party under applicable state
law and Fed. R. Civ. P. 25(a)(1), it is for the district court to determine, without
reference to Cal. Civ. Proc. Code § 377.32, whether appellants have met the

2
In conducting this analysis, district courts should not ignore the distinction
between motions to substitute as plaintiffs, and motions to substitute for defendants.
See Saylor v. Bastedo, 623 F.2d 230, 237 (2nd Cir. 1980) (recognizing the purpose
of Rule 25 “is to promote the prompt settlement and distribution of the estate of
deceased defendants,” and suggesting, “it is difficult to imagine a case where
discretion might properly be exercised to deny a motion to substitute for a deceased
plaintiff made within the rule’s time limits” (emphasis added)).

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procedural requirements of Fed. R. Civ. P. 25(a)(1). Neither Congress, nor the federal
courts, have set forth clear requirements of exactly what one must do to prove he or
she is the decedent’s successor. See, e.g., Marcano v. Offshore Venez. C.A., 497 F.
Supp. 204, 207 (E.D. La. 1980) (confessing the court was unable to find “any cases
discussing the procedure of how one becomes legal representative under Fed. R. Civ.
P. 25(a)(1)”). As discussed in subsection II.C of this opinion, federal courts have
analyzed Rule 25(a)(1) and have found what circumstances must exist for a person to
be a successor under Fed. R. Civ. P. 25(a)(1), and thereby a proper party for
substitution. The district court should look to these and other relevant federal cases
for guidance in determining whether appellants can demonstrate they are the proper
parties for substitution in this case, keeping in mind Rule 25(a)(1) should be applied
liberally and flexibly to permit substitution of the party or parties who, as plaintiffs,
would adequately represent Torres’s interests. See Sinito, 176 F.3d at 516. We
hesitate to limit further the district court’s discretion.

G. Remaining Issues
Because we reverse and remand with respect to the substitution issue, we
decline to consider appellants’ additional argument that the district court erred in
denying appellants’ motion to reconsider. We also decline to consider appellants’
motion to substitute as parties in this appeal, because our resolution of the issues on
appeal renders such consideration premature and unnecessary.

III. CONCLUSION
We reverse the district court’s denial of appellants’ motion for substitution, and
remand for further proceedings consistent with this opinion.
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