RULE 17. PLAINTIFF AND DEFENDANT; CAPACITY

Effective Date: 3/1/2011

(a) Real Party in Interest.

(1) Designation in General. 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:
(A) a personal representative;
(B) 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 another's benefit; and
(G) a party authorized by statute.
(2) Action in the Name of the State for Another's Use of Benefit. When a statute so provides, an action for another's use or benefit must be brought in the name of the State of North Dakota.
(3) Joinder of the Real Party in Interest. 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 for the real party in interest to ratify, join, or be substituted into the action. After ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by the real party in interest.

(b) Minor or Incompetent Person.

(1) With a Representative. If a minor or incompetent person has a representative, such as a general guardian, or like fiduciary, the representative may sue or defend on behalf of the minor or incompetent person.
(2) Without a Representative. 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 must appoint a guardian ad litem, or issue another appropriate orderm, to protect a minor or incompetent person who is self-represented in an action. The court may appoint a guardian ad litem to represent a minor or incompetent person, even though the 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.

(d) Public Officer's Title and Name. A public officer who sues or is sued in an official capacity may be designated by official title rather than by name, but the court may order that the officer's name be added.

Rule 17 was amended, effective March 1, 1990; March 1, 2007; March 1, 2011.

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.

Subdivision (d) was added to the rule effective March 1, 2011. The provision previously was part of Rule 10(a).

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.

CROSS REFERENCE: N.D.R.Civ.P. 9 (Pleading Special Matters); N.D.R.Civ.P. 10 (Form of Pleadings); N.D.R.Civ.P. 55 (Default).

Effective Date Obsolete Date
03/01/2011 View
03/01/2007 03/01/2011 View
03/01/1990 03/01/2007 View