Obsolete Date: 3/1/2007
(a) Real Party in Interest. Every action must be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought; and if a statute so provides, an action for the use or benefit of another must be brought in the name of the State of North Dakota. No action may be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after the objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and the ratification, joinder, or substitution has the same effect as if the action had been commenced in the name of the real party in interest.
(b) Infants or Incompetent Persons. Whenever an infant 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 or incompetent person. An infant 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 appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it considers proper for the protection of the infant or incompetent person; or, if the court considers it expedient, may appoint a guardian ad litem to represent an infant or incompetent person, even though the infant 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 shall be determined by appropriate statutory provisions.
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.