Legal Memorandum: Substitution of a Real Party in Interest

Issue: According to Rule 17(a)(1) of the Federal Rules of Civil Procedure under whose name may an action be prosecuted?

Rule 17(a)(1) of the Federal Rules of Civil Procedure provides that an action may be prosecuted only in the name of the “real party in interest.”  See Fiechter v. Am. Family Mut. Ins. Co., No. 09-CV-02681-WJM-MGH (D. Colo. Oct. 17, 2011).

Rule 17(a)(3) provides:

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.

Fed. R. Civ. P. 17(a)(3).

Tenth Circuit case law indicates that, under Rule 17, the substituted party is generally entitled to the original plaintiff’s commencement date for statute of limitations purposes.  Addressing this issue in Esposito v. United States, 368 F.3d 1271 (10th Cir. 2004), the Court of Appeals stated:

We do, however, find support in the federal rules for permitting substitution notwithstanding Mr. Esposito’s lack of capacity at the time the suit was filed. As the district court pointed out, nothing in Rule 17(a) requires that the original plaintiff have capacity to sue. The fact is, Rule 17(a) does more than merely provide a relation back principle.  It provides that substitution “shall have the same effect as if the action had been […]

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