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RULE 17. PARTIES PLAINTIFF AND DEFENDANT; CAPACITY

July 25, 2011

RULE 17.01: REAL PARTY IN INTEREST.

Every action shall be prosecuted in the name of the real party in interest; but an executor, administrator, guardian, bailee, trustee of an express trust, a party to whose rights another is subrogated, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his or her own name without joining the party for whose benefit the action is brought; and when a statute so provides an action for the use or benefit of another shall be brought in the name of this state. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification or commencement by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

RULE 17.02: CAPACITY TO SUE OR BE SUED.

(1) The capacity of any party to sue or be sued shall be determined by the law of this state.

(2) Any partnership or other unincorporated association may sue and be sued in the name which it has assumed or by which it is known. [As amended July 1, 1979; and amended by order entered January 28, 2000, effective July 1, 2000.]

RULE 17.03: INFANTS OR INCOMPETENT PERSONS.

Whenever an infant or incompetent person has a representative, such as a general guardian, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative, or if justice requires, he or she may sue by next friend. The court shall at any time after the filing of the complaint appoint a guardian ad litem to defend an action for an infant or incompetent person who does not have a duly appointed representative, or whenever justice requires. The court may in its discretion allow the guardian ad litem a reasonable fee for services, to be taxed as costs. [As amended July 1, 1979.]

Advisory Commission Comments.

17.01: Rule 17.01 generally requires that actions be brought in the name of the real party in interest. Certain persons may sue in their own names without having to join the party for whose benefit the suit was brought; the list of such persons expressly includes executors, administrators, guardians, bailees, trustees or an express trust, persons to whose rights others have been subrogated, and any other persons authorized by statute to sue in their own names. The Rule is similar to Federal Rule 17(a), but unlike the federal rule, Rule 17.01 authorizes suit by a party in the party’s own name even though another has been subrogated to the right which the party seeks to enforce.

17.02: This Rule deals with capacity, and not with standing to sue, which is the subject of Rule 17.01.

17.03: Rule 17.03 establishes a uniform practice regarding suits brought on behalf of an infant or incompetent person, and, when justice requires, allows suit by next friend and requires that the court appoint a guardian ad litem.

Advisory Commission Comments [2000]. The addition of subsection (2) to Rule 17.02 merely recognizes the holding of Tennessee decisions applying Tennessee statutory law. See, e.g., Fain v. O’Connell, 909 S.W.2d 790, 794 (Tenn. 1995). The enforceability of judgments continues to be governed by the substantive law. See Federal Deposit Insurance Corp. v. Tyree, 698 S.W.2d 353 (Tenn. Ct. App. 1985).

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