NOTES TO RULE 17
HISTORY: (Amended Mar. 19, 1948; Oct. 20, 1949; July 1, 1966; Aug. 1, 1987; Aug. 1, 1988; Nov. 18, 1988, P.L. 100-690, Title VII, Subtitle B, § 7049, 102 Stat. 4401)
AMENDMENTS: 1988. Act Nov. 18, 1988, in subsec. (a), purported to delete "with him", but this amendment was not executed because "with him" did not appear in the existing text.
Notes of Advisory Committee on Rules.
Note to Subdivision (a).
The real party in interest provision, except for the last clause which is new, is taken verbatim from former Equity Rule 37 (Parties Generally--Intervention), except that the word "expressly" has been omitted. For similar provisions see NYCPA (1937) § 210; Wyo Rev Stat Ann (1931) §§ 89-501, 89-502, 89-503; English Rules Under the Judicature Act (The Annual Practice, 1937) O 16, r 8. See also Equity Rule 41 (Suit to Execute Trusts of Will--Heir as Party). For examples of statutes of the United States providing particularly for an action for the use or benefit of another in the name of the United States, see USC, Title 40, § 270b (Suit by persons furnishing labor and material for work on public building contracts . . . may sue on a payment bond, "in the name of the United States for the use of the person suing"); and USC, Title 25, § 201 (Penalties under laws relating to Indians--how recovered). Compare USC, Title 26, § 3745(c) (Suits for penalties, fines, and forfeitures, under this title, where not otherwise provided for, to be in name of United States).
Note to Subdivision (b).
For capacity see generally Clark and Moore, A New Federal Civil Procedure--II. Pleadings and Parties, 44 Yale LJ 1291, 1312--1317 (1935) and specifically Coppedge v Clinton, 72 F2d 531 (CCA 10th, 1934) (natural person); David Lupton's Sons Co. v Automobile Club of America, 225 US 489, 32 S Ct 711, 56 L Ed 1177, Ann Cas 1914A, 699 (1912) (corporation); Puerto Rico v Russell & Co., 288 US 476, 53 S Ct 447, 77 L Ed 903 (1933) (unincorporated assn.); United Mine Workers of America v Coronado Coal Co. 259 US 344, 42 S Ct 570, 66 L Ed 975, 27 ALR 762 (1922) (federal substantive right enforced against unincorporated association by suit against the association in its common name without naming all its members as parties). This rule follows the existing law as to such associations, as declared in the case last cited above. Compare Moffat Tunnel League v United States, 289 US 113, 53 S Ct 543, 77 L Ed 1069 (1933). See note to Rule 23, clause (1).
Note to Subdivision (c).
The provision for infants and incompetent persons is substantially former Equity Rule 70 (Suits by or Against Incompetents) with slight additions. Compare the more detailed English provisions, English Rules Under the Judicature Act (The Annual Practice, 1937) O 16, rr 16--21.
Notes of Advisory Committee on 1946 amendments to Rules.
The new matter [in subdivision (b)] makes clear the controlling character of Rule 66 regarding suits by or against a federal receiver in a federal court.
Notes of Advisory Committee on 1948 amendments to Rules.
The amendment effective October 20, 1949, deleted the words "Rule 66" at the end of subdivision (b) and substituted the words "Title 28, USC, §§ 754 and 959 (a)."
Notes of Advisory Committee on 1966 Amendments to Rules.
The minor change in the text of the rule is designed to make it clear that the specific instances enumerated are not exceptions to, but illustrations of, the rule. These illustrations, of course, carry no negative implication to the effect that there are not other instances of recognition as the real party in interest of one whose standing as such may be in doubt. The enumeration is simply of cases in which there might be substantial doubt as to the issue but for the specific enumeration. There are other potentially arguable cases that are not excluded by the enumeration. For example, the enumeration states that the promisee in a contract for the benefit of a third party may sue as real party in interest; it does not say, because it is obvious, that the third-party beneficiary may sue (when the applicable law gives him that right).
The rule adds to the illustrative list of real parties in interest a bailee--meaning, of course, a bailee suing on behalf of the bailor with respect to the property bailed. (When the possessor of property other than the owner sues for an invasion of the possessory interest he is the real party in interest.) The word "bailee" is added primarily to preserve the admiralty practice whereby the owner of a vessel as bailee of the cargo, or the master of the vessel as bailee of both vessel and cargo, sues for damage to either property interest or both. But there is no reason to limit such a provision to maritime situations. The owner of a warehouse in which household furniture is stored is equally entitled to sue on behalf of the numerous owners of the furniture stored. Cf. Gulf Oil Corp. v Gilbert, 330 US 501, (1947).
The provision that 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 the objection has been raised, for ratification, substitution, etc., is added simply in the interests of justice. In its origin the rule concerning the real party in interest was permissive in purpose: it was designed to allow an assignee to sue in his own name. That having been accomplished, the modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata.
This provision keeps pace with the law as it is actually developing. Modern decisions are inclined to be lenient when an honest mistake has been made in choosing the party in whose name the action is to be filed--in both maritime and nonmaritime cases. See Levinson v Deupree, 345 US 648 (1953); Link Aviation, Inc. v Downs, 325 F2d 613 (DC Cir 1963). The provision should not be misunderstood or distorted. It is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made. It does not mean, for example, that, following an airplane crash in which all aboard were killed, an action may be filed in the name of John Doe (a fictitious person), as personal representative of Richard Roe (another fictitious person), in the hope that at a later time the attorney filing the action may substitute the real name of the real personal representative of a real victim, and have the benefit of suspension of the limitation period. It does not even mean, when an action is filed by the personal representative of John Smith, of Buffalo, in the good faith belief that he was aboard the flight, that upon discovery that Smith is alive and well, having missed the fatal flight, the representative of James Brown, of San Francisco, an actual victim, can be substituted to take advantage of the suspension of the limitation period. It is, in cases of this sort, intended to insure against forfeiture and injustice--in short, to codify in broad terms the salutary principle of Levinson v Deupree, 345 US 648 (1953), and Link Aviation, Inc. v Downs, 325 F2d 613 (DC Cir 1963).
Notes of Advisory Committee on 1987 amendments to Rules.
The amendments are technical. No substantive change is intended.
Notes on Advisory Committee on 1988 amendments to Rules.
The amendments are technical. No substantive change is intended.