N.D.R.Civ.P.RULE 25. SUBSTITUTION OF PARTIES
(1) Substitution if the Claim is not Extinguished. If a party dies and the claim is
not thereby extinguished, the court may order substitution of the proper parties party. The A motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the decedent's successor or representative. notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any judicial district. Unless If the motion for substitution is not made not later than ninety within 90 days after the death is suggested upon the record by service of a statement of the fact of noting the death as provided herein for the service of the motion, the action shall by or against the decedent must be dismissed as to the deceased party.
(2) Continuation Among the Remaining Parties.
In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which After a party's death, if the right sought to be enforced survives only to or against the surviving plaintiffs or only against the surviving defendants, the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties. The death shall be suggested upon must be noted on the record and the action shall proceed in favor of or against the surviving parties.
(3) Continuation After Judgment.
After If a party dies after a verdict is rendered or an order for judgment is made in any action, such , the action shall does not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action survives by law, and substitution of parties shall must be allowed as in other cases.
(4) Service. A motion to substitute, together with a notice of hearing, 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. Service may be made in any judicial district.
(b) Incompetency. If a party becomes incompetent, the court
upon may, on motion, served as provided in subdivision (a) of this rule may allow permit the action to be continued by or against his the party's representative or guardian. or The court may, on motion or on its own, appoint a guardian ad litem for that purpose for the party. The motion must be served as provided in Rule 25(a)(4).
(c) Transfer of Interest.
In case of any transfer of If an interest is transferred, the action may be continued by or against the original party , unless the court upon , on motion, directs the person to whom the interest is transferred the transferee to be substituted in the action or joined with the original party. Service of the The motion shall be made must be served as provided in subdivision (a) of this rule Rule 25(a)(4).
Substitution of successor to public officer Public Officers; Death or Separation from Office. If An action does not abate when a public officer who is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office , while the action does not abate and the is pending. The officer's successor is automatically substituted as a party. Proceedings following the substitution must Later proceedings should be in the substituted party's name of the substituted party, but any misnomer not affecting the parties' substantial rights of the parties must be disregarded. An The court may order of substitution may be entered at any time, but an omission to enter the absence of such an order does not affect the substitution.
Rule 25 was amended, effective March 1, 1990; ____________.
Rule 25 is
identical to Rule 25, FRCivP, except for style changes; the addition to subdivision (a) of the third paragraph concerning a death after verdict or order for judgment; specification in subdivision (b) that the action may be continued by a guardian or guardian ad litem rather than a representative, as in the federal rule; substitution of a different title or heading for subdivision (d); and deletion of subdivision (d)(2) [effective July 1, 1981]. The deleted subdivision (d)(2) which provided that whenever a public officer sues or is sued has been deleted and is now a part of Rule 10(a) derived from Fed.R.Civ.P. 25.
Rule 25 was amended, effective _______________, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Subdivision (d) was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.
Sources: Joint Procedure Committee Minutes of ______________; April 20, 1989, Page 2; December 3, 1987, page 11; November 29-30, 1979, pages 4-5; September 20-21, 1979, pages 18-19;
RuleFed.R.Civ.P. 25 , FRCivP. Statutes Affected: Superseded: N.D.R.C. 1943 §§ 28-1212, 28-0213, 28-0214, 28-0215, 28-1216, 28-1217, 28-1218.
Rules N.D.R.Civ.P. 4 (Persons Subject to Jurisdiction - Process - Service), N.D.R.Civ.P. 5 (Service and Filing of Pleadings and Other Papers), N.D.R.Civ.P. 10 (Form of Pleadings), N.D.R.Civ.P. 17 (Parties Plaintiff and Defendant - Capacity), and N.D.R.Civ.P. 22 (Interpleader), N.D.R.Civ.P.; Rule and N.D.R.App.P. 43 (Substitution of Parties) , N.D.R.App.P.