RULE 25. SUBSTITUTION OF PARTIES
(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 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 may be dismissed as to the deceased
(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
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
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
(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
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; March 1, 2011.
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.
Rule 25 was amended, effective March 1, 2011, 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 September 25,
2008, pages 20-21; 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.
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),
10 (Form of Pleadings), N.D.R.Civ.P. 17 (Parties Plaintiff and Defendant - Capacity),
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.