Del. R. Ch. Ct. 17

As amended through September 30, 2024

Rule 17 - Real Party in Interest; Capacity; Public Officers

(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) an executor;

(B) an administrator;

(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)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) Persons Without Capacity.

(1)Persons Included. A person without capacity is an unborn descendant, minor, person with a disability, or other person who lacks the capacity to sue or defend a lawsuit.

(2)Representatives. The following representatives may sue or defend on behalf of a person without capacity unless the representative has an interest in the action:

(A) a general guardian;

(B) a limited guardian with authority to sue or defend the lawsuit;

(C) a trustee;

(D) a conservator; and

(E) a like fiduciary.

(3)Guardian Ad Litem. A guardian ad litem may sue or defend a lawsuit on behalf of a person without capacity if appointed by the Court. The Court must appoint a guardian ad litem to represent a person without capacity who is unrepresented.

(4)Rebuttable Presumption of Qualification to Serve as a Guardian. A parent of a minor who holds joint or sole custody will be presumed a qualified guardian ad litem unless such person has an interest in the case which is inconsistent with the minor's interests.

(5)Procedure for Appointment of Guardian Ad Litem.

(A)Motion for Appointment. A person who wishes to have a guardian ad litem appointed for a person without capacity must file a motion. The motion must:

(i) explain how the person to be represented lacks capacity, including the person's date of birth if a minor;

(ii) confirm the absence of any duly appointed representative;

(iii) describe the movant's relationship to the person without capacity;

(iv) identify the proposed guardian ad litem;

(v) describe the qualifications of the guardian ad litem;

(vi) affirm that the proposed guardian ad litem lacks any interest in the action;

(vii) identify all persons holding parental or custodial rights, guardianship, or power of attorney to sue or defend lawsuits, or who otherwise have the care of the person without capacity and whether each is available for appointment or has an interest in the case; and

(viii) be verified or otherwise supported by sufficient evidence.

(B)Service. The motion must be served on all parties to the action and:

(i) on the person allegedly without capacity, unless the Court determines that service would be useless or harmful;

(ii) on all persons or entities holding parental or custodial rights, guardianship or power of attorney to sue or defend lawsuits, or, if such persons or entities do not exist, then an adult living with or who otherwise has the care of the person allegedly without capacity; and

(iii) by publication as the Court directs, if the location or identity of the person allegedly without capacity is unknown.

(C)Order. If the motion shows cause for appointing a guardian ad litem, or if the Court appoints a guardian ad litem on its own initiative, then the Court must enter an order of appointment. The Court will not enter an order of appointment before 20 days after service of the motion, if one is filed.

(D)Granting of Motion. If a person opposes the motion, then the Court may appoint a guardian ad litem after finding:

(i) the person to be represented lacks capacity;

(ii) the guardian ad litem can fairly represent the interests of the person without capacity; and

(iii) the guardian ad litem can best represent the interests of the person without capacity, if there is more than one proposed guardian ad litem.

(6)No Appropriate Guardian. If no appropriate guardian ad litem is identified, the Court can:

(A) appoint an attorney to represent the person without capacity, and assess any related attorney's fees and expenses against any or all parties;

(B) permit the person without capacity to proceed without a guardian ad litem; or

(C) dismiss any claim or the action.

(c) 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.

Del. R. Ch. Ct. 17

Amended September 25, 2023, effective 9/25/2023.

Comment

In 2023, Rule 17 was revised to align its language to the extent possible with Federal Rule of Civil Procedure 17 so that authorities interpreting the federal rule could be cited more easily as persuasive authority for the interpretation of Rule 17.

Except as noted, no substantive change in the interpretation of

the rule was intended, and prior Delaware authorities interpreting the rule remain applicable.

The revision transfers the contents of Rule 25(d)(2) to Rule 17(c). No substantive change was intended.

The revision makes the following substantive changes.

The revision permits the appointment of a limited guardian that will sue or defend a lawsuit on behalf of a person without capacity.

The revision incorporates a presumption that a parent of a minor who holds joint or sole custody is a qualified guardian ad litem unless the parent has a conflict of interest.

The revision specifies and expands (i) the information required in any motion for appointment of a guardian ad litem and (ii) the service recipients. It also requires that no order be entered until 20 days after service of a motion, if one is filed.

The revision omits the "order nisi" to align Rule 17 with the Court's current practice of permitting an opportunity to respond to a motion before entry of an order.

The revision specifies possible alternatives in the event no appropriate guardian ad litem is identified.