(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 party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion for substitution is not made within 90 days after service of a statement noting the death, the action by or against the decedent may be dismissed.
(2) Continuation Among the Remaining Parties. After a party's death, if the right sought to be enforced survives only to or against the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties. The death must be noted on the record.
(3) Continuation After Judgment. If a party dies after a verdict is rendered or an order for judgment is made, the action does not abate, and substitution of parties must be allowed.
(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 may, on motion, permit the action to be continued by or against the party's representative or guardian. The court may, on motion or on its own, appoint a guardian ad litem for the party. The motion must be served as provided in Rule 25(a)(4).
(c) Transfer of Interest. If an interest is transferred, the action may be continued by or against the original party unless the court, on motion, directs the transferee to be substituted in the action or joined with the original party. The motion must be served as provided in Rule 25(a)(4).
(d) Public Officers; Death or Separation from Office. An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party. Later proceedings should be in the substituted party's name, but any misnomer not affecting the parties' substantial rights must be disregarded. The court may order substitution at any time, but 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 derived from Fed.R.Civ.P. 25.
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; Fed.R.Civ.P. 25.
CROSS REFERENCE: 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.App.P. 43 (Substitution of Parties).