Rule 25.Substitution of parties

Rule 25(a)(1) covers death. If a party dies and the claim isn't extinguished, the court may order substitution of the proper parties on a motion by any party or by the deceased party's successors or representatives, served together with notice of the hearing on the parties under Rule 5 and on non-parties in the manner Rule 4 requires for serving a summons, and that service may happen in any county. Unless the substitution motion is made no later than 90 days after the death is suggested on the record by service of a statement of the fact of death, the action must be dismissed as to the deceased party — except in cases where an application for an interlocutory appeal has been made. Rule 25(a)(2) covers the narrower case where the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants: there the action doesn't abate at all; the death is suggested on the record and the action proceeds in favor of or against the survivors.

Rule 25(b) extends similar treatment to incompetency: if a party becomes incompetent, the court, on a motion served the same way as a death motion, may allow the action to continue by or against that party's representative. Rule 25(c) addresses a transfer of interest during the litigation — the action may continue by or against the original party unless the court, on motion, directs that the person to whom the interest was transferred be substituted or joined, with the motion served the same way as under subdivision (a).

Rule 25(d) handles public officers. When an officer of the State of Delaware, a county, a city, or another governmental agency is a party in an official capacity and dies, resigns, or otherwise leaves office while the case is pending, the action doesn't abate — the successor is automatically substituted, and proceedings continue in the substituted party's name, with any misnomer that doesn't affect substantial rights disregarded. An order of substitution can be entered at any time, and failing to enter one doesn't affect the substitution itself. When such an officer sues or is sued in an official capacity, the officer can be described by official title rather than by name, though the court may require the officer's name to be added.