(a) Real party in interest.
(1) Designation in General.
Every An action must be
prosecuted in the name of the real
party in interest. The following may sue in their own names without joining the person for
whose benefit the action is brought:
An executor, a personal
an administrator, a conservator;
(C) a guardian
(D) a bailee
(E) a trustee of an express trust
(F) a party with whom or in whose name a contract has been made for
the another's benefit
of another,; and
or a party authorized by statute.
may sue in that person's own name without joining the party for whose benefit the
brought; and if
(2) Action in the Name of the State for Another's Use of Benefit. When a statute so
provides, an action for
the another's use or benefit of
another must be brought in the name
of the state of North Dakota.
(3) Joinder of the Real Party in Interest.
No action may be dismissed on
the ground that it
is not prosecuted The court may not dismiss an action for failure to prosecute
in the name
of the real party in interest until, after an objection, a reasonable time has been allowed
the objection for ratification of commencement of the action by, or joinder or
of, the real party in interest ; to ratify, join, or be substituted into
the action. and the After
ratification, joinder, or substitution, has the same effect as if the action
proceeds as if it had
been originally commenced in the name of by the real party in
Infants Minor or Incompetent persons
(1) With a Representative.
Whenever an infant If a minor
or incompetent person has a
representative, such as a general guardian , or other like
fiduciary, the representative may sue
or defend on behalf of the infant minor or incompetent person.
(2) Without a Representative.
An infant A minor or
incompetent person who does not have
a duly appointed representative may sue by a next friend or by a guardian ad litem. The court
shall must appoint a guardian ad litem, for an infant
or incompetent person not otherwise
represented in an action or shall make such other or issue another appropriate
order, as it
considers proper for the protection of the infant to protect a minor or
who is unrepresented in an action. ; or, if the The court
considers it expedient, may appoint
a guardian ad litem to represent an infant a minor or incompetent
person, even though the
infant minor or incompetent person may have a general guardian and
may have appeared.
(c) Capacity to Sue or be Sued. The capacity of all other persons to sue or be sued
is determined by appropriate statutory provisions.
Rule 17 was amended, effective March 1, 1990; March 1, 2007;______________.
This rule is derived from Fed.R.Civ.P. 17. The rule deviates from the federal rule by substituting State of North Dakota for United States in subdivision (a); reversing titles and content of subdivisions (b) and (c); adding a final clause concerning appointment of a guardian ad litem to subdivision (b); and greatly simplifying subdivision (c).
In some cases, the State of North Dakota may become a real party in interest by action of law. See, e.g., N.D.C.C. § 14-09-09.26. Under N.D.R.Civ.P. 10, the state must be named as a party in the title of an action if it is a real party in interest or if it becomes a real party in interest.
Rule 17 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 17 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.
Sources: Joint Procedure Committee Minutes of April 24-25, 2008, page 27; April 20, 1989, page 2; December 3, 1987, page 11; September 20-21, 1979, pages 11-12; Fed.R.Civ.P. 17.
Superseded: N.D.R.C. 1943 §§ 28-0201, 28-0202 (first sentence), 28-0204.
Cross Reference: N.D.R.Civ.P. 9 (Pleading Special Matters), N.D.R.Civ.P. 10 (Form of Pleadings) and N.D.R.Civ.P. 55 (Default).