SUBSTITUTION OF PARTIES

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 Section 2005 of this title and upon persons not parties in the manner provided in Section 2004 of this title for the service of a summons. During the pendency of an action any party or any attorney who was an attorney of record for the deceased party immediately preceding death may file with the court a statement of the death of another party conforming substantially to Form 22 of Section 2027 of this title along with proof of death and serve the statement of death and proof of death on all other parties in the manner provided in Section 2005 of this title. Unless the motion for substitution is made within ninety (90) days of service of the statement of death, the action shall be dismissed without prejudice 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. A statement of death conforming substantially to Form 22 of Section 2027 of this title along with proof of death shall be filed with the court by any party and served on all other parties, 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 subsection A of this section may allow the action to be continued by or against the representative of the incompetent party.

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 subsection A of this section.

D. PUBLIC OFFICERS; DEATH OR SEPARATION FROM OFFICE.

1. When a public officer is a party to an action in the official capacity of the public officer and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the successor of the public officer 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. When a public officer sues or is sued in the official capacity of the public officer, the public officer may be described as a party by the official title of the public officer rather than by name; but the court may require the name of the public officer to be added.

Added by Laws 1984, c. 164, § 27, eff. Nov. 1, 1984. Amended by Laws 2009, c. 251, § 1, eff. Nov. 1, 2009.