(a) Death.
(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the 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 the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
(2) 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 the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.
(b) Incompetency. If a party becomes incompetent, the court upon motion served as provided in subdivision (a) of this rule may allow the action to be continued by or against the party’s representative.
(c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule.
(d) Public Officers; Death or Separation From Office.
(1) When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer’s successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.
**(2) A public officer who sues or is sued in an official capacity may be described as a party by the officer’s official title rather than by name; but the court may require the officer’s name to be added.
(As amended Dec. 29, 1948, eff.** Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987.)
V. DEPOSITIONS AND DISCOVERY
added in current removed in current
Compared to current version (2025).
(a) Death.
(1) Substitution if the Claim Is Not Extinguished. If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. They. A motion for substitution may be made by any party or by the decedent’s successors or representatives o. If the deceased party and, together with the 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 the motion for substitution is made not later than 90 days after themotion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.
(2) Continuation Among the Remaining Parties. After a party’s death, isf the right souggested upon the record by service of a statement ofht to be enforced survives only to or against the remaining parties, the fact of the death as provided hereion does not abate, but proceeds in favor the service of the motion, the action shall be dismissed as toof or against the remaining parties. The death should be noted on the dreceased partyord.
(23) In the event of the death of one or more of the plaintiffs or of one or morService. A motion to substitute, together with a notice of the defendants in an action in which the right sought to be enforced surviaring, must be servesd only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties 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 upmay, on motion served as provided in subdivision (a) of this rule may allow, permit the action to be continued by or against the party’s representative.
(c) Transfer of Interest. In case of any transfer of interest The motion must be served as provided in Rule 25(a)(3).
(c) Transfer of Interest. If an interest is transferred, the action may be continued by or against the original party, unless the court, upon motion directs the person to whom the interest is, orders the transferredee to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this ruleThe motion must be served as provided in Rule 25(a)(3).
(d) Public Officers; Death or Separation Ffrom Office.
(1) W An action does not abate when a public officer who is a party to an action in his official capacity and during its pendencin an official capacity dies, resigns, or otherwise ceases to hold office, while the action does not abate and tis pending. The officer’s successor is automatically substituted as a party. PLater proceedings following the substitution shall be in the name ofshould be in the substituted party’s name, but any misnomer not affecting the parties’ substantial rights of the parties shallmust be disregarded. AnThe court may order of substitution may be entered at any time, but the omission to enterabsence of such an order shalldoes not affect the substitution.
(2) A public officer who sues or is sued in an official capacity may be described as a party by the officer’s official title rather than by name; but the court may require the officer’s name to be added.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987.)
Appended Forms
V. DEPOSITIONS AND DISCOVERY; Apr. 30, 2007, eff. Dec. 1, 2007.)