[House Prints 109-7]
[From the U.S. Government Publishing Office]
FEDERAL RULES
OF
CIVIL PROCEDURE
WITH FORMS
DECEMBER 1, 2006
[GRAPHIC] [TIFF OMITTED] TONGRESS.15
Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
109th Congress
2d Session COMMITTEE PRINT No. 7
__________________________________________________________________
FEDERAL RULES
OF
CIVIL PROCEDURE
WITH FORMS
DECEMBER 1, 2006
[GRAPHIC] [TIFF OMITTED] CONGRESS.15
Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
U.S. GOVERNMENT PRINTING OFFICE
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COMMITTEE ON THE JUDICIARY
One Hundred Ninth Congress
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR S. SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North
DANIEL E. LUNGREN, California Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
BOB INGLIS, South Carolina MARTIN T. MEEHAN,
JOHN N. HOSTETTLER, Indiana Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT,
RIC KELLER, Florida Massachusetts
DARRELL ISSA, California ROBERT WEXLER, Florida
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa CHRIS VAN HOLLEN, Maryland
TOM FEENEY, Florida DEBBIE WASSERMAN SCHULTZ,
TRENT FRANKS, Arizona Florida
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel -- Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
(ii)
FOREWORD
This document contains the Federal Rules of Civil Procedure together
with forms, as amended to December 1, 2006. The rules and forms have
been promulgated and amended by the United States Supreme Court pursuant
to law, and further amended by Acts of Congress. This document has been
prepared by the Committee in response to the need for an official up-to-
date document containing the latest amendments to the rules.
For the convenience of the user, where a rule has been amended a
reference to the date the amendment was promulgated and the date the
amendment became effective follows the text of the rule.
The Committee on Rules of Practice and Procedure and the Advisory
Committee on the Federal Rules of Civil Procedure, Judicial Conference
of the United States, prepared notes explaining the purpose and intent
of the amendments to the rules. The Committee Notes may be found in the
Appendix to Title 28, United States Code, following the particular rule
to which they relate.
Chairman, Committee on the Judiciary.
December 1, 2006.
(iii)
AUTHORITY FOR PROMULGATION OF RULES
AUTHORITY FOR PROMULGATION OF RULES
TITLE 28, UNITED STATES CODE
Sec. 2072. Rules of procedure and evidence; power to prescribe
(a) The Supreme Court shall have the power to prescribe general
rules of practice and procedure and rules of evidence for cases in the
United States district courts (including proceedings before magistrate
judges thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive
right. All laws in conflict with such rules shall be of no further force
or effect after such rules have taken effect.
(c) Such rules may define when a ruling of a district court is final
for the purposes of appeal under section 1291 of this title.
(Added Pub. L. 100-702, title IV, Sec. 401(a), Nov. 19, 1988, 102 Stat.
4648, eff. Dec. 1, 1988; amended Pub. L. 101-650, title III,
Sec. Sec. 315, 321, Dec. 1, 1990, 104 Stat. 5115, 5117.)
Sec. 2073. Rules of procedure and evidence; method of prescribing
(a)(1) The Judicial Conference shall prescribe and publish the
procedures for the consideration of proposed rules under this section.
(2) The Judicial Conference may authorize the appointment of
committees to assist the Conference by recommending rules to be
prescribed under sections 2072 and 2075 of this title. Each such
committee shall consist of members of the bench and the professional
bar, and trial and appellate judges.
(b) The Judicial Conference shall authorize the appointment of a
standing committee on rules of practice, procedure, and evidence under
subsection (a) of this section. Such standing committee shall review
each recommendation of any other committees so appointed and recommend
to the Judicial Conference rules of practice, procedure, and evidence
and such changes in rules proposed by a committee appointed under
subsection (a)(2) of this section as may be necessary to maintain
consistency and otherwise promote the interest of justice.
(c)(1) Each meeting for the transaction of business under this
chapter by any committee appointed under this section shall be open to
the public, except when the committee so meeting, in open session and
with a majority present, determines that it is in the public interest
that all or part of the remainder of the meeting on that day shall be
closed to the public, and states the reason for so closing the meeting.
Minutes of each meeting for the transaction of business under this
chapter shall be maintained by the committee and made available to the
public, except that any portion of such minutes, relating to a closed
meeting and made available to the public, may contain such deletions as
may be necessary to avoid frustrating the purposes of closing the
meeting.
(2) Any meeting for the transaction of business under this chapter,
by a committee appointed under this section, shall be preceded by
sufficient notice to enable all interested persons to attend.
(d) In making a recommendation under this section or under section
2072 or 2075, the body making that recommendation shall provide a
proposed rule, an explanatory note on the rule, and a written report
explaining the body's action, including any minority or other separate
views.
(e) Failure to comply with this section does not invalidate a rule
prescribed under section 2072 or 2075 of this title.
(Added Pub. L. 100-702, title IV, Sec. 401(a), Nov. 19, 1988, 102 Stat.
4649, eff. Dec. 1, 1988; amended Pub. L. 103-394, title I, Sec. 104(e),
Oct. 22, 1994, 108 Stat. 4110.)
Sec. 2074. Rules of procedure and evidence; submission to Congress;
effective date
(a) The Supreme Court shall transmit to the Congress not later than
May 1 of the year in which a rule prescribed under section 2072 is to
become effective a copy of the proposed rule. Such rule shall take
effect no earlier than December 1 of the year in which such rule is so
transmitted unless otherwise provided by law. The Supreme Court may fix
the extent such rule shall apply to proceedings then pending, except
that the Supreme Court shall not require the application of such rule to
further proceedings then pending to the extent that, in the opinion of
the court in which such proceedings are pending, the application of such
rule in such proceedings would not be feasible or would work injustice,
in which event the former rule applies.
(b) Any such rule creating, abolishing, or modifying an evidentiary
privilege shall have no force or effect unless approved by Act of
Congress.
(Added Pub. L. 100-702, title IV, Sec. 401(a), Nov. 19, 1988, 102 Stat.
4649, eff. Dec. 1, 1988.)
HISTORICAL NOTE
The Supreme Court prescribes rules of civil procedure for the
district courts pursuant to section 2072 of Title 28, United States
Code, as enacted by Title IV ``Rules Enabling Act'' of Pub. L. 100-702
(approved Nov. 19, 1988, 102 Stat. 4648), effective December 1, 1988.
Pursuant to section 2074 of Title 28, the Supreme Court transmits to
Congress (not later than May 1 of the year in which a rule prescribed
under section 2072 is to become effective) a copy of the proposed rule.
The rule takes effect no earlier than December 1 of the year in which
the rule is transmitted unless otherwise provided by law.
By act of June 19, 1934, ch. 651, 48 Stat. 1064 (subsequently 28
United States Code, Sec. 2072), the Supreme Court was authorized to
prescribe general rules of civil procedure for the district courts. The
rules, and subsequent amendments, were not to take effect until (1) they
had been first reported to Congress by the Attorney General at the
beginning of a regular session and (2) after the close of that session.
Under a 1949 amendment to 28 U.S.C., Sec. 2072, the Chief Justice of
the United States, instead of the Attorney General, reported the rules
to Congress. In 1950, section 2072 was further amended so that
amendments to the rules could be reported to Congress not later than May
1 each year and become effective 90 days after being reported. Effective
December 1, 1988, section 2072 was repealed and supplanted by new
sections 2072 and 2074, see first paragraph of Historical Note above.
The original rules, pursuant to act of June 19, 1934, were adopted
by order of the Court on December 20, 1937, transmitted to Congress by
the Attorney General on January 3, 1938, and became effective September
16, 1938 (308 U.S. 645; Cong. Rec., vol. 83, pt. 1, p. 13, Exec. Comm.
905; H. Doc. 460 and H. Doc. 588, 75th Cong.)
Rule 81(a)(6) was abrogated by order of the Court on December 28,
1939, transmitted to Congress by the Attorney General on January 3,
1940, effective April 3, 1941 (308 U.S. 642; Cong. Rec., vol. 86, pt. 1,
p. 14, Exec. Comm. 1152).
Further amendments were adopted by the Court by order dated December
27, 1946, transmitted to Congress by the Attorney General on January 3,
1947, and became effective March 19, 1948 (329 U.S. 839; Cong. Rec.,
vol. 93, pt. 1, p. 41, Exec. Comm. 32; H. Doc. 46 and H. Doc. 473, 80th
Cong.). The amendments affected Rules 6, 7, 12, 13, 14, 17, 24, 26, 27,
28, 33, 34, 36, 41, 45, 52, 54, 56, 58, 59, 60, 62, 65, 66, 68, 73, 75,
77, 79, 81, 84, and 86, and Forms 17, 20, 22, and 25.
Additional amendments were adopted by the Court by order dated
December 29, 1948, transmitted to Congress by the Attorney General on
January 3, 1949, and became effective October 20, 1949 (335 U.S. 919;
Cong. Rec., vol. 95, pt. 1, p. 94, Exec. Comm. 24; H. Doc. 33, 81st
Cong.). The amendments affected Rules 1, 17, 22, 24, 25, 27, 37, 45, 57,
60, 62, 65, 66, 67, 69, 72, 73, 74, 75, 76, 79, 81, 82, and 86, and
Forms 1, 19, 22, 23, and 27.
Amendment to Rule 81(a)(7) and new Rule 71A and Forms 28 and 29 were
adopted by the Court by order dated April 30, 1951, transmitted to
Congress on May 1, 1951, and became effective August 1, 1951 (341 U.S.
959; Cong. Rec., vol. 97, pt. 4, p. 4666, Exec. Comm. 414; H. Doc. 121,
82d Cong.).
Additional amendments were adopted by the Court by order dated April
17, 1961, transmitted to Congress by the Chief Justice on April 18,
1961, and became effective July 19, 1961 (368 U.S. 1009; Cong. Rec.,
vol. 107, pt. 5, p. 6524, Exec. Comm. 821). The amendments affected
Rules 25, 54, 62, and 86, and Forms 2 and 19.
Additional amendments were adopted by the Court by order dated
January 21, 1963, transmitted to Congress by the Chief Justice (374 U.S.
861; Cong. Rec., vol. 109, pt. 1, p. 1037, Exec. Comm. 267; H. Doc. 48,
88th Cong.), and became effective July 1, 1963, by order of the Court
dated March 18, 1963 (374 U.S. 861; Cong. Rec., vol. 109, pt. 4, p.
4639, Exec. Comm. 569; H. Doc. 48, pt. 2, 88th Cong.; see also H. Doc.
67, 88th Cong.). The amendments affected Rules 4, 5, 6, 7, 12, 13, 14,
15, 24, 25, 26, 28, 30, 41, 49, 50, 52, 56, 58, 71A, 77, 79, 81, and 86,
and Forms 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 18, 21, 22-A, and 22-
B, and added Forms 30, 31, and 32.
Additional amendments were adopted by the Court by order dated
February 28, 1966, transmitted to Congress by the Chief Justice on the
same day (383 U.S. 1029; Cong. Rec., vol. 112, pt. 4, p. 4229, Exec.
Comm. 2094; H. Doc. 391, 89th Cong.), and became effective July 1, 1966.
The amendments affected Rules 1, 4, 8, 9, 12, 13, 14, 15, 17, 18, 19,
20, 23, 24, 26, 38, 41, 42, 43, 44, 47, 53, 59, 65, 68, 73, 74, 75, 81,
and 82, and Forms 2 and 15, and added Rules 23.1, 23.2, 44.1, and 65.1,
and Supplementary Rules A, B, C, D, E, and F for certain Admiralty and
Maritime claims. The amendments govern all proceedings in actions
brought after they became effective and also all further proceedings in
actions then pending, except to the extent that in the opinion of the
Court an application in a particular action then pending would not be
feasible or would work injustice, in which event the former procedure
applies.
In addition, Rule 6(c) of the Rules of Civil Procedure promulgated
by the Court on December 20, 1937, effective September 16, 1938; Rule 2
of the Rules for Practice and Procedure under section 25 of an act to
amend and consolidate the acts respecting copyright, approved March 4,
1909, promulgated by the Court on June 1, 1909, effective July 1, 1909;
and the Rules of Practice in Admiralty and Maritime Cases, promulgated
by the Court on December 6, 1920, effective March 7, 1921, as revised,
amended and supplemented, were rescinded, effective July 1, 1966.
Additional amendments were adopted by the Court by order dated
December 4, 1967, transmitted to Congress by the Chief Justice on
January 15, 1968 (389 U.S. 1121; Cong. Rec., vol. 114, pt. 1, p. 113,
Exec. Comm. 1361; H. Doc. 204, 90th Cong.), and became effective July 1,
1968. The amendments affected Rules 6(b), 9(h), 41(a)(1), 77(d), 81(a),
and abrogated the chapter heading ``IX. Appeals'' and Rules 72-76, and
Form 27.
Additional amendments were adopted by the Court by order dated March
30, 1970, transmitted to Congress by the Chief Justice on the same day
(398 U.S. 977; Cong. Rec., vol. 116, pt. 7, p. 9861, Exec. Comm. 1839;
H. Doc. 91-291), and became effective July 1, 1970. The amendments
affected Rules 5(a), 9(h), 26, 29 to 37, 45(d), and 69(a), and Form 24.
On March 1, 1971, the Court adopted additional amendments, which
were transmitted to Congress by the Chief Justice on the same day (401
U.S. 1017; Cong. Rec., vol. 117, pt. 4, p. 4629, Exec. Comm. 341; H.
Doc. 92-57), and became effective July 1, 1971. The amendments affected
Rules 6(a), 27(a)(4), 30(b)(6), 77(c), and 81(a)(2).
Further amendments were proposed by the Court in its orders dated
November 20 and December 18, 1972, and transmitted to Congress by the
Chief Justice on February 5, 1973 (409 U.S. 1132 and 419 U.S. 1133;
Cong. Rec., vol. 119, pt. 3, p. 3247, Exec. Comm. 359; H. Doc. 93-46).
Although these amendments were to have become effective July 1, 1973,
Public Law 93-12 (approved March 30, 1973, 87 Stat. 9) provided that the
proposed amendments ``shall have no force or effect except to the
extent, and with such amendments, as they may be expressly approved by
Act of Congress.'' Section 3 of Public Law 93-595 (approved January 2,
1975, 88 Stat. 1949) approved the amendments proposed by the Court, to
be effective July 1, 1975. The amendments affected Rules 30(c), 43, and
44.1, and abrogated Rule 32(c).
On April 29, 1980, the Court adopted additional amendments, which
were transmitted to Congress by the Chief Justice on the same day (446
U.S. 995; Cong. Rec., vol. 126, pt. 8, p. 9535, Exec. Comm. 4260; H.
Doc. 96-306), and became effective August 1, 1980. The amendments
affected Rules 4, 5, 26, 28, 30, 32, 33, 34, 37, and 45.
Section 205(a) and (b) of Public Law 96-481 (approved October 21,
1980, 94 Stat. 2330) repealed Rule 37(f) and deleted the corresponding
item from the Table of Contents, to be effective October 1, 1981.
Amendments to Rule 4 were adopted by the Court by order dated April
28, 1982, transmitted to Congress by the Chief Justice on the same day
(456 U.S. 1013; Cong. Rec., vol. 128, pt. 6, p. 8191, Exec. Comm. 3822;
H. Doc. 97-173), and became effective August 1, 1982. However, Public
Law 97-227 (approved August 2, 1982, 96 Stat. 246) provided that the
amendments to Rule 4 shall take effect on October 1, 1983, unless
previously approved, disapproved, or modified by Act of Congress, and
further provided that this Act shall be effective as of August 1, 1982,
but shall not apply to the service of process that takes place between
August 1, 1982, and the date of enactment of this Act [August 2, 1982].
Section 5 of Public Law 97-462 (approved January 12, 1983, 96 Stat.
2530) provided that the amendments to Rule 4 the effective date of which
was delayed by Public Law 97-227 shall not take effect. Sections 2 to 4
of Public Law 97-462 amended Rule 4(a), (c) to (e), and (g), added Rule
4(j), and added Form 18-A in the Appendix of Forms, effective 45 days
after enactment of Public Law 97-462 [February 26, 1983].
Additional amendments were adopted by the Court by order dated April
28, 1983, transmitted to Congress by the Chief Justice on the same day
(461 U.S. 1095; Cong. Rec., vol. 129, pt. 8, p. 10479, Exec. Comm. 1027;
H. Doc. 98-54), and became effective August 1, 1983. The amendments
included new Rules 26(g), 53(f), 72 through 76 and new Official Forms 33
and 34, and amendments to Rules 6(b), 7(b), 11, 16, 26(a), (b), 52(a),
53(a), (b), (c), and 67.
Additional amendments were adopted by the Court by order dated April
29, 1985, transmitted to Congress by the Chief Justice on the same day
(471 U.S. 1153; Cong. Rec., vol. 131, pt. 7, p. 9826, Exec. Comm. 1156;
H. Doc. 99-63), and became effective August 1, 1985. The amendments
affected Rules 6(a), 45(d)(2), 52(a), 71A(h), and 83, Official Form 18-
A, and Rules B(1), C(3), and E(4)(f) of the Supplemental Rules for
Certain Admiralty and Maritime Claims.
Additional amendments were adopted by the Court by order dated March
2, 1987, transmitted to Congress by the Chief Justice on the same day
(480 U.S. 953; Cong. Rec., vol. 133, pt. 4, p. 4484, Exec. Comm. 714; H.
Doc. 100-40), and became effective August 1, 1987. The amendments
affected Rules 4(b), (d)(1), (e), (i)(1), 5(b), (e), 6(e), 8(a), (b),
(e)(2), 9(a), 11, 12(a), (b), (e) to (g), 13(a), (e), (f), 14, 15,
16(f), 17, 18, 19(a), (b), 20(b), 22(1), 23(c)(2), 23.1, 24(a), 25(b),
(d), 26(b)(3), (e)(1), (2), (f)(5), (g), 27(a)(1), (b), 28(b), 30(b)(1),
(2), (4), (6), (7), (c), (e), (f)(1), (g), 31(a), (b), 32(a)(4), 34(a),
35(a), (b)(1), (2), 36, 37(a)(2), (b)(2), (c), (d), (g), 38(c), (d),
41(a)(2), (b), 43(f), 44(a)(1), 44.1, 45(c), (f), 46, 49(a), 50(b), (d),
51, 53(a), (c) to (e)(1), (3), (5), 54(c), 55(a), (b), (e), 56(a), (b),
(e) to (g), 60(b), 62(f), 63, 65(b), 65.1, 68, 69, 71, 71A(d)(2),
(3)(ii), (e) to (g), (j), 73(b), 75(b)(2), (c)(1), (2), (4), 77(c), 78,
and 81(c), and Rules B, C(3), (6), E(2)(b), (4)(b), (c), (5)(c), (9)(b),
(c), and F(1) to (6) of the Supplemental Rules for Certain Admiralty and
Maritime Claims.
Additional amendments were adopted by the Court by order dated April
25, 1988, transmitted to Congress by the Chief Justice on the same day
(485 U.S. 1043; Cong. Rec., vol. 134, pt. 7, p. 9154, Exec. Comm. 3515;
H. Doc. 100-185), and became effective August 1, 1988. The amendments
affected Rules 17(a) and 71A(e).
Section 7047(b) of Public Law 100-690 (approved November 18, 1988,
102 Stat. 4401) amended Rule 35. Section 7049 of Public Law 100-690,
which directed amendment of Rule 17(a) by striking ``with him'', and
section 7050 of Public Law 100-690, which directed amendment of Rule
71A(e) by striking ``taking of the defendants property'' and inserting
``taking of the defendant's property'', could not be executed because of
the intervening amendments to those Rules by the Court by order dated
April 25, 1988, effective August 1, 1988.
Additional amendments were adopted by the Court by order dated April
30, 1991, transmitted to Congress by the Chief Justice on the same day
(500 U.S. 963; Cong. Rec., vol. 137, pt. 7, p. 9721, Ex. Comm. 1190; H.
Doc. 102-77), and became effective December 1, 1991. The amendments
affected Rules 5, 15, 24, 34, 35, 41, 44, 45, 47, 48, 50, 52, 53, 63,
72, and 77, the headings for chapters VIII and IX, and Rules C and E of
the Supplemental Rules for Certain Admiralty and Maritime Claims, added
new Official Forms 1A and 1B, and abrogated Form 18-A.
Section 11 of Pub. L. 102-198 (approved December 9, 1991, 105 Stat.
1626) amended Rule 15(c)(3) as transmitted to Congress by the Supreme
Court to become effective on December 1, 1991; provided that Forms 1A
and 1B included in the transmittal shall not be effective; and provided
that Form 18-A, abrogated by the Supreme Court in the transmittal,
effective December 1, 1991, shall continue in effect on or after that
date.
Additional amendments were adopted by the Court by order dated April
22, 1993, transmitted to Congress by the Chief Justice on the same day
(507 U.S. 1089; Cong. Rec., vol. 139, pt. 6, p. 8127, Exec. Comm. 1102;
H. Doc. 103-74), and became effective December 1, 1993. The amendments
affected Rules 1, 4, 5, 11, 12, 15, 16, 26, 28, 29, 30, 31, 32, 33, 34,
36, 37, 38, 50, 52, 53, 54, 58, 71A, 72, 73, 74, 75, and 76, added new
Rule 4.1, affected Forms 2, 33, 34, and 34A, added new Forms 1A, 1B, and
35, and abrogated Form 18-A.
Additional amendments were adopted by the Court by order dated April
27, 1995, transmitted to Congress by the Chief Justice on the same day
(514 U.S. 1151; Cong. Rec., vol. 141, pt. 8, p. 11745, Ex. Comm. 804; H.
Doc. 104-64), and became effective December 1, 1995. The amendments
affected Rules 50, 52, 59, and 83.
Additional amendments were adopted by the Court by order dated April
23, 1996, transmitted to Congress by the Chief Justice on the same day
(517 U.S. 1279; Cong. Rec., vol. 142, pt. 6, p. 8831, Ex. Comm. 2487; H.
Doc. 104-201), and became effective December 1, 1996. The amendments
affected Rules 5 and 43.
Additional amendments were adopted by the Court by order dated April
11, 1997, transmitted to Congress by the Chief Justice on the same day
(520 U.S. 1305; Cong. Rec., vol. 143, pt. 4, p. 5550, Ex. Comm. 2795; H.
Doc. 105-67), and became effective December 1, 1997. The amendments
affected Rules 9 and 73, abrogated Rules 74, 75, and 76, and affected
Forms 33 and 34.
Additional amendments were adopted by the Court by order dated April
24, 1998, transmitted to Congress by the Chief Justice on the same day
(523 U.S. 1221; H. Doc. 105-266), and became effective December 1, 1998.
The amendments affected Rule 23.
Additional amendments were adopted by the Court by order dated April
26, 1999, transmitted to Congress by the Chief Justice on the same day
(526 U.S. 1183; Cong. Rec., vol. 145, pt. 6, p. 7907, Ex. Comm. 1787; H.
Doc. 106-54), and became effective December 1, 1999. The amendments
affected Rule 6 and Form 2.
Additional amendments were adopted by the Court by order dated April
17, 2000, transmitted to Congress by the Chief Justice on the same day
(529 U.S. 1155; Cong. Rec., vol. 146, pt. 5, p. 6328, Ex. Comm. 7336; H.
Doc. 106-228), and became effective December 1, 2000. The amendments
affected Rules 4, 5, 12, 14, 26, 30, and 37 and Rules B, C, and E of the
Supplemental Rules for Certain Admiralty and Maritime Claims.
Additional amendments were adopted by the Court by order dated April
23, 2001, transmitted to Congress by the Chief Justice on the same day
(532 U.S. 992; Cong. Rec., vol. 147, pt. 5, p. 6126, Ex. Comm. 1575; H.
Doc. 107-61), and became effective December 1, 2001. The amendments
affected Rules 5, 6, 65, 77, 81, and 82.
Additional amendments were adopted by the Court by order dated April
29, 2002, transmitted to Congress by the Chief Justice on the same day
(535 U.S. 1147; Cong. Rec., vol. 148, pt. 5, p. 6813, Ex. Comm. 6623; H.
Doc. 107-204), and became effective December 1, 2002. The amendments
affected Rules 54, 58, and 81 and Rule C of the Supplemental Rules for
Certain Admiralty and Maritime Claims and added new Rule 7.1.
Additional amendments were adopted by the Court by order dated March
27, 2003, transmitted to Congress by the Chief Justice on the same day
(538 U.S. 1083; Cong. Rec., vol. 149, pt. 6, p. 7689, Ex. Comm. 1493; H.
Doc. 108-56), and became effective December 1, 2003. The amendments
affected Rules 23,51, 53, 54, and 71A and Forms 19, 31, and 32.
Additional amendments were adopted by the Court by order dated April
25, 2005, transmitted to Congress by the Chief Justice on the same day
(544 U.S. 1173; Cong. Rec., vol. 151, p. H3060, Daily Issue, Ex. Comm.
1906; H. Doc. 109-23), and became effective December 1, 2005. The
amendments affected Rules 6, 27, and 45, and Rules B and C of the
Supplemental Rules for Certain Admiralty and Maritime Claims.
Additional amendments were adopted by the Court by order dated
April 12, 2006, transmitted to Congress by the Chief Justice on the same
day (547 U.S. ----; Cong. Rec., vol. 152, p. H2179, Daily Issue, Ex.
Comm. 7317; H. Doc. 109-105), and became effective December 1, 2006. The
amendments affected Rules 5, 9, 14, 16, 24, 26, 33, 34, 37, 45, 50, and
65.1, added new Rule 5.1, affected Form 35, affected Rules A, C, and E
of the Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions, and added new Rule G to such Supplemental Rules.
Committee Notes
Committee Notes prepared by the Committee on Rules of Practice and
Procedure and the Advisory Committee on the Federal Rules of Civil
Procedure, Judicial Conference of the United States, explaining the
purpose and intent of the amendments are set out in the Appendix to
Title 28, United States Code, following the particular rule to which
they relate. In addition, the rules and amendments, together with
Committee Notes, are set out in the House documents listed above.
CONTENTS
TABLE OF CONTENTS
Page
Foreword...................................................... iii
Authority for promulgation of rules........................... v
Historical note............................................... vii
RULES
I. Scope of Rules--One Form of Action:
Rule 1. Scope and Purpose of Rules.............................1
Rule 2. One Form of Action.....................................1
II. Commencement of Action; Service of Process, Pleadings,
Motions, and Orders:
Rule 3. Commencement of Action.................................1
Rule 4. Summons:
(a) Form...................................... 1
(b) Issuance.................................. 1
(c) Service with Complaint; by Whom Made...... 2
(d) Waiver of Service; Duty to Save Costs of
Service; Request to Waive................. 2
(e) Service Upon Individuals Within a Judicial
District of the United States............. 3
(f) Service Upon Individuals in a Foreign
Country................................... 3
(g) Service Upon Infants and Incompetent
Persons................................... 4
(h) Service Upon Corporations and Associations 4
(i) Serving the United States, Its Agencies,
Corporations, Officers, or Employees...... 4
(j) Service Upon Foreign, State, or Local
Governments............................... 5
(k) Territorial Limits of Effective Service... 5
(l) Proof of Service.......................... 5
(m) Time Limit for Service.................... 6
(n) Seizure of Property; Service of Summons
Not Feasible.............................. 6
Rule 4.1. Service of Other Process:
(a) Generally................................. 6
(b) Enforcement of Orders: Commitment for
Civil Contempt............................ 6
Rule 5. Service and Filing of Pleadings and Other
Papers:
(a) Service: When Required.................... 7
(b) Making Service............................ 7
(c) Same: Numerous Defendants................. 7
(d) Filing; Certificate of Service............ 8
(e) Filing with the Court Defined............. 8
Rule 5.1. Constitutional Challenge to a Statute--
Notice, Certification, and Intervention:
(a) Notice by a Party......................... 8
(b) Certification by the Court................ 8
(c) Intervention; Final Decision on the Merits 9
(d) No Forfeiture............................. 9
Rule 6. Time:
(a) Computation............................... 9
(b) Enlargement............................... 9
(c) Unaffected by Expiration of Term
(Rescinded).
(d) For Motions--Affidavits................... 9
(e) Additional Time After Certain Kinds of
Service................................... 10
III. Pleadings and Motions:
Rule 7. Pleadings Allowed; Form of Motions:
(a) Pleadings................................. 10
(b) Motions and Other Papers.................. 10
(c) Demurrers, Pleas, Etc., Abolished......... 10
Rule 7.1. Disclosure Statement:
(a) Who Must File: Nongovernmental Corporate
Party..................................... 10
(b) Time for Filing; Supplemental Filing...... 11
Rule 8. General Rules of Pleading:
Page
(a) Claims for Relief......................... 11
(b) Defenses; Form of Denials................. 11
(c) Affirmative Defenses...................... 11
(d) Effect of Failure To Deny................. 11
(e) Pleading To Be Concise and Direct;
Consistency............................... 12
(f) Construction of Pleadings................. 12
Rule 9. Pleading Special Matters:
(a) Capacity.................................. 12
(b) Fraud, Mistake, Condition of the Mind..... 12
(c) Conditions Precedent...................... 12
(d) Official Document or Act.................. 12
(e) Judgment.................................. 12
(f) Time and Place............................ 12
(g) Special Damage............................ 12
(h) Admiralty and Maritime Claims............. 12
Rule 10. Form of Pleadings:
(a) Caption; Names of Parties................. 13
(b) Paragraphs; Separate Statements........... 13
(c) Adoption by Reference; Exhibits........... 13
Rule 11. Signing of Pleadings, Motions, and Other
Papers; Representations to Court; Sanctions:
(a) Signature................................. 13
(b) Representations to Court.................. 13
(c) Sanctions:
(1) How Initiated:
(A) By Motion................. 14
(B) On Court's Initiative..... 14
(2) Nature of Sanction; Limitations... 14
(3) Order............................. 15
(d) Inapplicability to Discovery.............. 15
Rule 12. Defenses and Objections--When and How
Presented--By Pleading or Motion--Motion for
Judgment on the Pleadings:
(a) When Presented............................ 15
(b) How Presented............................. 16
(c) Motion for Judgment on the Pleadings...... 16
(d) Preliminary Hearings...................... 16
(e) Motion for More Definite Statement........ 16
(f) Motion To Strike.......................... 16
(g) Consolidation of Defenses in Motion....... 17
(h) Waiver or Preservation of Certain Defenses 17
Rule 13. Counterclaim and Cross-Claim:
(a) Compulsory Counterclaims.................. 17
(b) Permissive Counterclaims.................. 17
(c) Counterclaim Exceeding Opposing Claim..... 17
(d) Counterclaim Against the United States.... 17
(e) Counterclaim Maturing or Acquired After
Pleading.................................. 18
(f) Omitted Counterclaim...................... 18
(g) Cross-Claim Against Co-Party.............. 18
(h) Joinder of Additional Parties............. 18
(i) Separate Trials; Separate Judgments....... 18
Rule 14. Third-Party Practice:
(a) When Defendant May Bring in Third Party... 18
(b) When Plaintiff May Bring in Third Party... 19
(c) Admiralty and Maritime Claims............. 19
Rule 15. Amended and Supplemental Pleadings:
(a) Amendments................................ 19
(b) Amendments To Conform to the Evidence..... 19
(c) Relation Back of Amendments............... 20
(d) Supplemental Pleadings.................... 20
Rule 16. Pretrial Conferences; Scheduling; Management:
(a) Pretrial Conferences; Objectives.......... 20
(b) Scheduling and Planning................... 21
(c) Subjects for Consideration at Pretrial
Conferences............................... 21
(d) Final Pretrial Conference................. 22
(e) Pretrial Orders........................... 22
(f) Sanctions................................. 22
IV. Parties:
Rule 17. Parties Plaintiff and Defendant; Capacity:
Page
(a) Real Party in Interest.................... 23
(b) Capacity To Sue or Be Sued................ 23
(c) Infants or Incompetent Persons............ 23
Rule 18. Joinder of Claims and Remedies:
(a) Joinder of Claims......................... 24
(b) Joinder of Remedies; Fraudulent
Conveyances............................... 24
Rule 19. Joinder of Persons Needed for Just
Adjudication:
(a) Persons To Be Joined if Feasible.......... 24
(b) Determination by Court Whenever Joinder
Not Feasible.............................. 24
(c) Pleading Reasons for Nonjoinder........... 25
(d) Exception of Class Actions................ 25
Rule 20. Permissive Joinder of Parties:
(a) Permissive Joinder........................ 25
(b) Separate Trials........................... 25
Rule 21. Misjoinder and Non-Joinder of Parties................25
Rule 22. Interpleader.........................................25
Rule 23. Class Actions:
(a) Prerequisites to a Class Action........... 26
(b) Class Actions Maintainable................ 26
(c) Determining by Order Whether to Certify a
Class Action; Appointing Class Counsel;
Notice and Membership in Class; Judgment;
Multiple Classes and Subclasses........... 26
(d) Orders in Conduct of Actions.............. 27
(e) Settlement, Voluntary Dismissal, or
Compromise................................ 28
(f) Appeals................................... 28
(g) Class Counsel:
(1) Appointing Class Counsel.......... 28
(2) Appointment Procedure............. 29
(h) Attorney Fees Award:
(1) Motion for Award of Attorney Fees. 29
(2) Objections to Motion.............. 29
(3) Hearing and Findings.............. 29
(4) Reference to Special Master or
Magistrate Judge.................. 29
Rule 23.1. Derivative Actions by Shareholders.................29
Rule 23.2. Actions Relating to Unincorporated Associations....30
Rule 24. Intervention:
(a) Intervention of Right..................... 30
(b) Permissive Intervention................... 30
(c) Procedure................................. 30
Rule 25. Substitution of Parties:
(a) Death..................................... 31
(b) Incompetency.............................. 31
(c) Transfer of Interest...................... 31
(d) Public Officers; Death or Separation From
Office.................................... 31
V. Depositions and Discovery:
Rule 26. General Provisions Governing Discovery; Duty
of Disclosure:
(a) Required Disclosures; Methods to Discover
Additional Matter:
(1) Initial Disclosures............... 32
(2) Disclosure of Expert Testimony.... 33
(3) Pretrial Disclosures.............. 33
(4) Form of Disclosures............... 34
(5) Methods to Discover Additional
Matter............................ 34
(b) Discovery Scope and Limits:
(1) In General........................ 34
(2) Limitations....................... 34
(3) Trial Preparation: Materials...... 35
(4) Trial Preparation: Experts........ 35
(5) Claims of Privilege or Protection
of Trial-Preparation Materials.... 36
(c) Protective Orders......................... 36
(d) Timing and Sequence of Discovery.......... 37
(e) Supplementation of Disclosures and
Responses................................. 37
(f) Conference of Parties; Planning for
Discovery................................. 38
(g) Signing of Disclosures, Discovery
Requests, Responses, and Objections....... 38
Rule 27. Depositions Before Action or Pending Appeal:
(a) Before Action:
(1) Petition.......................... 39
(a) Before Action--Continued
Page
(2) Notice and Service................ 40
(3) Order and Examination............. 40
(4) Use of Deposition................. 40
(b) Pending Appeal............................ 40
(c) Perpetuation by Action.................... 41
Rule 28. Persons Before Whom Depositions May Be Taken:
(a) Within the United States.................. 41
(b) In Foreign Countries...................... 41
(c) Disqualification for Interest............. 41
Rule 29. Stipulations Regarding Discovery Procedure...........42
Rule 30. Depositions Upon Oral Examination:
(a) When Depositions May Be Taken; When Leave
Required.................................. 42
(b) Notice of Examination: General
Requirements; Method of Recording;
Production of Documents and Things;
Deposition of Organization; Deposition by
Telephone................................. 42
(c) Examination and Cross-Examination; Record
of Examination; Oath; Objections.......... 43
(d) Schedule and Duration; Motion to Terminate
or Limit Examination...................... 44
(e) Review by Witness; Changes; Signing....... 44
(f) Certification and Delivery by Officer;
Exhibits; Copies.......................... 45
(g) Failure To Attend or To Serve Subpoena;
Expenses.................................. 45
Rule 31. Depositions Upon Written Questions:
(a) Serving Questions; Notice................. 46
(b) Officer To Take Responses and Prepare
Record.................................... 46
(c) Notice of Filing.......................... 46
Rule 32. Use of Depositions in Court Proceedings:
(a) Use of Depositions........................ 47
(b) Objections to Admissibility............... 48
(c) Form of Presentation...................... 48
(d) Effect of Errors and Irregularities in
Depositions:
(1) As to Notice...................... 48
(2) As to Disqualification of Officer. 48
(3) As to Taking of Deposition........ 48
(4) As to Completion and Return of
Deposition........................ 49
Rule 33. Interrogatories to Parties:
(a) Availability.............................. 49
(b) Answers and Objections.................... 49
(c) Scope; Use at Trial....................... 49
(d) Option to Produce Business Records........ 50
Rule 34. Production of Documents, Electronically
Stored Information, and Things and Entry Upon Land
for Inspection and Other Purposes:
(a) Scope..................................... 50
(b) Procedure................................. 50
(c) Persons Not Parties....................... 51
Rule 35. Physical and Mental Examinations of Persons:
(a) Order for Examination..................... 51
(b) Report of Examiner........................ 51
Rule 36. Requests for Admission:
(a) Request for Admission..................... 52
(b) Effect of Admission....................... 53
Rule 37. Failure to Make Disclosures or Cooperate in
Discovery; Sanctions:
(a) Motion For Order Compelling Disclosure or
Discovery:
(1) Appropriate Court................. 53
(2) Motion............................ 53
(3) Evasive or Incomplete Disclosure,
Answer, or Response............... 54
(4) Expenses and Sanctions............ 54
(b) Failure To Comply With Order:
(1) Sanctions by Court in District
Where Deposition Is Taken......... 54
(2) Sanctions by Court in Which Action
Is Pending........................ 55
(c) Failure to Disclose; False or Misleading
Disclosure; Refusal to Admit.............. 55
(d) Failure of Party to Attend at Own
Deposition or Serve Answers to
Interrogatories or Respond to Request for
Inspection................................ 56
(e) Subpoena of Person in Foreign Country
(Abrogated).
(f) Electronically Stored Information......... 56
(g) Failure to Participate in the Framing of a
Discovery Plan............................ 56
VI. Trials:
Rule 38. Jury Trial of Right:
Page
(a) Right Preserved........................... 57
(b) Demand.................................... 57
(c) Same: Specification of Issues............. 57
(d) Waiver.................................... 57
(e) Admiralty and Maritime Claims............. 57
Rule 39. Trial by Jury or by the Court:
(a) By Jury................................... 57
(b) By the Court.............................. 57
(c) Advisory Jury and Trial by Consent........ 58
Rule 40. Assignment of Cases for Trial........................58
Rule 41. Dismissal of Actions:
(a) Voluntary Dismissal: Effect Thereof:
(1) By Plaintiff; by Stipulation...... 58
(2) By Order of Court................. 58
(b) Involuntary Dismissal: Effect Thereof..... 58
(c) Dismissal of Counterclaim, Cross-Claim, or
Third-Party Claim......................... 58
(d) Costs of Previously-Dismissed Action...... 59
Rule 42. Consolidation; Separate Trials:
(a) Consolidation............................. 59
(b) Separate Trials........................... 59
Rule 43. Taking of Testimony:
(a) Form...................................... 59
(b) Scope of Examination and Cross-Examination
(Abrogated).
(c) Record of Excluded Evidence (Abrogated).
(d) Affirmation in Lieu of Oath............... 59
(e) Evidence on Motions....................... 59
(f) Interpreters.............................. 60
Rule 44. Proof of Official Record:
(a) Authentication:
(1) Domestic.......................... 60
(2) Foreign........................... 60
(b) Lack of Record............................ 60
(c) Other Proof............................... 61
Rule 44.1. Determination of Foreign Law.......................61
Rule 45. Subpoena:
(a) Form; Issuance............................ 61
(b) Service................................... 62
(c) Protection of Persons Subject to Subpoenas 62
(d) Duties in Responding to Subpoena.......... 63
(e) Contempt.................................. 64
Rule 46. Exceptions Unnecessary...............................64
Rule 47. Selection of Jurors:
(a) Examination of Jurors..................... 65
(b) Peremptory Challenges..................... 65
(c) Excuse.................................... 65
Rule 48. Number of Jurors--Participation in Verdict...........65
Rule 49. Special Verdicts and Interrogatories:
(a) Special Verdicts.......................... 65
(b) General Verdict Accompanied by Answer to
Interrogatories........................... 65
Rule 50. Judgment as a Matter of Law in Jury Trials;
Alternative Motion for New Trial; Conditional
Rulings:
(a) Judgment as a Matter of Law:
(1) In General........................ 66
(2) Motion............................ 66
(b) Renewing the Motion After Trial;
Alternative Motion for a New Trial........ 66
(c) Granting Renewed Motion for Judgment as a
Matter of Law; Conditional Rulings; New
Trial Motion.............................. 66
(d) Same: Denial of Motion for Judgment as a
Matter of Law............................. 67
Rule 51. Instructions to Jury; Objections; Preserving
a Claim of Error:
(a) Requests.................................. 67
(b) Instructions.............................. 67
(c) Objections................................ 68
(d) Assigning Error; Plain Error.............. 68
Rule 52. Findings by the Court; Judgment on Partial
Findings:
(a) Effect.................................... 68
Rule 52. Findings by the Court; Judgment on Partial
Findings--Continued
Page
(b) Amendment................................. 68
(c) Judgment on Partial Findings.............. 69
Rule 53. Masters:
(a) Appointment............................... 69
(b) Order Appointing Master:
(1) Notice............................ 69
(2) Contents.......................... 69
(3) Entry of Order.................... 70
(4) Amendment......................... 70
(c) Master's Authority........................ 70
(d) Evidentiary Hearings...................... 70
(e) Master's Orders........................... 70
(f) Master's Reports.......................... 70
(g) Action on Master's Order, Report, or
Recommendations:
(1) Action............................ 70
(2) Time To Object or Move............ 70
(3) Fact Findings..................... 70
(4) Legal Conclusions................. 70
(5) Procedural Matters................ 70
(h) Compensation:
(1) Fixing Compensation............... 71
(2) Payment........................... 71
(3) Allocation........................ 71
(i) Appointment of Magistrate Judge........... 71
VII. Judgment:
Rule 54. Judgments; Costs:
(a) Definition; Form.......................... 71
(b) Judgment Upon Multiple Claims or Involving
Multiple Parties.......................... 71
(c) Demand for Judgment....................... 71
(d) Costs; Attorneys' Fees:
(1) Costs Other than Attorneys' Fees.. 72
(2) Attorneys' Fees................... 72
Rule 55. Default:
(a) Entry..................................... 72
(b) Judgment:
(1) By the Clerk...................... 73
(2) By the Court...................... 73
(c) Setting Aside Default..................... 73
(d) Plaintiffs, Counterclaimants, Cross-
Claimants................................. 73
(e) Judgment Against the United States........ 73
Rule 56. Summary Judgment:
(a) For Claimant.............................. 73
(b) For Defending Party....................... 73
(c) Motion and Proceedings Thereon............ 74
(d) Case Not Fully Adjudicated on Motion...... 74
(e) Form of Affidavits; Further Testimony;
Defense Required.......................... 74
(f) When Affidavits Are Unavailable........... 74
(g) Affidavits Made in Bad Faith.............. 74
Rule 57. Declaratory Judgments................................75
Rule 58. Entry of Judgment:
(a) Separate Document......................... 75
(b) Time of Entry............................. 75
(c) Cost or Fee Awards........................ 75
(d) Request for Entry......................... 76
Rule 59. New Trials; Amendment of Judgments:
(a) Grounds................................... 76
(b) Time for Motion........................... 76
(c) Time for Serving Affidavits............... 76
(d) On Court's Initiative; Notice; Specifying
Grounds................................... 76
(e) Motion to Alter or Amend Judgment......... 76
Rule 60. Relief From Judgment or Order:
(a) Clerical Mistakes......................... 76
(b) Mistakes; Inadvertence; Excusable Neglect;
Newly Discovered Evidence; Fraud, Etc..... 76
Rule 61. Harmless Error.......................................77
Rule 62. Stay of Proceedings To Enforce a Judgment:
(a) Automatic Stay; Exceptions--Injunctions,
Receiverships, and Patent Accountings..... 77
Rule 62. Stay of Proceedings To Enforce a Judgment--
Continued
Page
(b) Stay on Motion for New Trial or for
Judgment.................................. 77
(c) Injunction Pending Appeal................. 78
(d) Stay Upon Appeal.......................... 78
(e) Stay in Favor of the United States or
Agency Thereof............................ 78
(f) Stay According to State Law............... 78
(g) Power of Appellate Court Not Limited...... 78
(h) Stay of Judgment as to Multiple Claims or
Multiple Parties.......................... 78
Rule 63. Inability of a Judge to Proceed......................79
VIII. Provisional and Final Remedies:
Rule 64. Seizure of Person or Property........................79
Rule 65. Injunctions:
(a) Preliminary Injunction:
(1) Notice............................ 79
(2) Consolidation of Hearing With
Trial on Merits................... 79
(b) Temporary Restraining Order; Notice;
Hearing; Duration......................... 79
(c) Security.................................. 80
(d) Form and Scope of Injunction or
Restraining Order......................... 80
(e) Employer and Employee; Interpleader;
Constitutional Cases...................... 80
(f) Copyright Impoundment..................... 80
Rule 65.1. Security: Proceedings Against Sureties.............81
Rule 66. Receivers Appointed by Federal Courts................81
Rule 67. Deposit in Court.....................................81
Rule 68. Offer of Judgment....................................82
Rule 69. Execution:
(a) In General................................ 82
(b) Against Certain Public Officers........... 82
Rule 70. Judgment for Specific Acts; Vesting Title............83
Rule 71. Process in Behalf of and Against Persons Not Parties.83
IX. Special Proceedings:
Rule 71A. Condemnation of Property:
(a) Applicability of Other Rules.............. 83
(b) Joinder of Properties..................... 83
(c) Complaint:
(1) Caption........................... 83
(2) Contents.......................... 83
(3) Filing............................ 84
(d) Process:
(1) Notice; Delivery.................. 84
(2) Same; Form........................ 84
(3) Service of Notice................. 84
(4) Return; Amendment................. 85
(e) Appearance or Answer...................... 85
(f) Amendment of Pleadings.................... 85
(g) Substitution of Parties................... 85
(h) Trial..................................... 86
(i) Dismissal of Action:
(1) As of Right....................... 86
(2) By Stipulation.................... 86
(3) By Order of the Court............. 86
(4) Effect............................ 87
(j) Deposit and Its Distribution.............. 87
(k) Condemnation Under a State's Power of
Eminent Domain............................ 87
(l) Costs..................................... 87
Rule 72. Magistrate Judges; Pretrial Orders:
(a) Nondispositive Matters.................... 87
(b) Dispositive Motions and Prisoner Petitions 87
Rule 73. Magistrate Judges; Trial by Consent and
Appeal:
(a) Powers; Procedure......................... 88
(b) Consent................................... 88
(c) Appeal.................................... 88
(d) Optional Appeal Route (Abrogated).
Rule 74. Method of Appeal From Magistrate Judge to
District Judge Under Title 28, U.S.C.
Sec. 636(c)(4) and Rule 73(d) (Abrogated).
Rule 75. Proceedings on Appeal From Magistrate Judge
to District Judge Under Rule 73(d) (Abrogated).
Rule 76. Judgment of the District Judge on the Appeal
Under Rule 73(d) and Costs (Abrogated).
X. District Courts and Clerks:
Rule 77. District Courts and Clerks:
(a) District Courts Always Open............... 89
Rule 77. District Courts and Clerks--Continued
Page
(b) Trials and Hearings; Orders in Chambers... 89
(c) Clerk's Office and Orders by Clerk........ 89
(d) Notice of Orders or Judgments............. 89
Rule 78. Motion Day...........................................90
Rule 79. Books and Records Kept by the Clerk and
Entries Therein:
(a) Civil Docket.............................. 90
(b) Civil Judgments and Orders................ 90
(c) Indices; Calendars........................ 90
(d) Other Books and Records of the Clerk...... 91
Rule 80. Stenographer; Stenographic Report or
Transcript as Evidence:
(a) Stenographer (Abrogated).
(b) Official Stenographer (Abrogated).
(c) Stenographic Report or Transcript as
Evidence.................................. 91
XI. General Provisions:
Rule 81. Applicability in General:
(a) To What Proceedings Applicable............ 91
(b) Scire Facias and Mandamus................. 92
(c) Removed Actions........................... 92
(d) District of Columbia; Courts and Judges
(Abrogated).
(e) Law Applicable............................ 93
(f) References to Officer of the United States 93
Rule 82. Jurisdiction and Venue Unaffected....................93
Rule 83. Rules by District Courts; Judge's Directives:
(a) Local Rules............................... 93
(b) Procedures When There is No Controlling
Law....................................... 94
Rule 84. Forms................................................94
Rule 85. Title................................................94
Rule 86. Effective Date:
(a) [Effective Date of Original Rules]........ 94
(b) Effective Date of Amendments.............. 94
(c) Effective Date of Amendments.............. 94
(d) Effective Date of Amendments.............. 94
(e) Effective Date of Amendments.............. 95
Appendix of Forms:
Form
1. Summons...................................................97
1A. Notice of Lawsuit and Request for Waiver of Service of
Summons.......................................98
1B. Waiver of Service of Summons.............................99
2. Allegation of Jurisdiction...............................100
3. Complaint on a Promissory Note...........................101
4. Complaint on an Account..................................101
5. Complaint for Goods Sold and Delivered...................101
6. Complaint for Money Lent.................................101
7. Complaint for Money Paid by Mistake......................102
8. Complaint for Money Had and Received.....................102
9. Complaint for Negligence.................................102
10. Complaint for Negligence Where Plaintiff Is Unable To
Determine Definitely Whether the Person
Responsible is C. D. or E. F. or Whether Both
Are Responsible and Where His Evidence May
Justify a Finding of Wilfulness or of
Recklessness or of Negligence................102
11. Complaint for Conversion.................................103
12. Complaint for Specific Performance of Contract To Convey
Land.........................................103
13. Complaint on Claim for Debt and To Set Aside Fraudulent
Conveyance Under Rule 18(b)..................103
14. Complaint for Negligence Under Federal Employer's Liability
Act..........................................104
15. Complaint for Damages Under Merchant Marine Act..........104
16. Complaint for Infringement of Patent.....................105
17. Complaint for Infringement of Copyright and Unfair
Competition..................................105
18. Complaint for Interpleader and Declaratory Relief........107
18-A. Notice and Acknowledgment for Service by Mail (Abrogated).
19. Motion To Dismiss, Presenting Defenses of Failure To State a
Claim, of Lack of Service of Process, of
Improper Venue, and of Lack of Jurisdiction
Under Rule 12(b).............................107
20. Answer Presenting Defenses Under Rule 12(b)..............108
21. Answer to Complaint Set Forth in Form 8, With Counterclaim
for Interpleader.............................109
Form
Page
22. Motion To Bring in Third-Party Defendant (Eliminated).
22-A. Summons and Complaint Against Third-Party Defendant....110
22-B. Motion To Bring in Third-Party Defendant...............111
23. Motion To Intervene as a Defendant Under Rule 24.........112
24. Request for Production of Documents, etc., Under Rule 34.113
25. Request for Admission Under Rule 36......................113
26. Allegation of Reason for Omitting Party..................113
27. Notice of Appeal to Court of Appeals Under Rule
73(b) (Abrogated).
28. Notice: Condemnation.....................................114
29. Complaint: Condemnation..................................115
30. Suggestion of Death Upon the Record Under Rule 25(a)(1)..116
31. Judgment on Jury Verdict.................................116
32. Judgment on Decision by the Court........................117
33. Notice of Availability of Magistrate Judge to Exercise
Jurisdiction.................................118
34. Consent to Exercise of Jurisdiction by a United States
Magistrate Judge.............................118
34A. Order of Reference......................................119
35. Report of Parties' Planning Meeting......................119
supplemental rules for admiralty or maritime claims and asset forfeiture
actions
Rule A. Scope of Rules........................................ 121
Rule B. In Personam Actions: Attachment and Garnishment:
(1) When Available; Complaint, Affidavit, Judicial
Authorization, and Process...................121
(2) Notice to Defendant......................................122
(3) Answer:
(a) By Garnishee.............................. 122
(b) By Defendant.............................. 122
Rule C. In Rem Actions: Special Provisions:
(1) When Available...........................................122
(2) Complaint................................................123
(3) Judicial Authorization and Process:
(a) Arrest Warrant............................ 123
(b) Service................................... 123
(c) Deposit in Court.......................... 123
(d) Supplemental Process...................... 123
(4) Notice...................................................123
(5) Ancillary Process........................................124
(6) Responsive Pleading; Interrogatories:
(a) Maritime Arrests and Other Proceedings.... 124
(b) Interrogatories........................... 124
Rule D. Possessory, Petitory, and Partition Actions........... 124
Rule E. Actions in Rem and Quasi in Rem: General Provisions:
(1) Applicability............................................124
(2) Complaint; Security:
(a) Complaint................................. 125
(b) Security for Costs........................ 125
(3) Process..................................................125
(4) Execution of Process; Marshal's Return; Custody of
Property; Procedures for Release:
(a) In General................................ 125
(b) Tangible Property......................... 125
(c) Intangible Property....................... 125
(d) Directions With Respect to Property in
Custody................................... 126
(e) Expenses of Seizing and Keeping Property;
Deposit................................... 126
(f) Procedure for Release From Arrest or
Attachment................................ 126
(5) Release of Property:
(a) Special Bond.............................. 126
(b) General Bond.............................. 126
(c) Release by Consent or Stipulation; Order
of Court or Clerk; Costs.................. 127
(d) Possessory, Petitory, and Partition
Actions................................... 127
(6) Reduction or Impairment of Security......................127
(7) Security on Counterclaim.................................127
(8) Restricted Appearance....................................128
(9) Disposition of Property; Sales:
(a) Interlocutory Sales; Delivery............. 128
(9) Disposition of Property; Sales--Continued
Page
(b) Sales, Proceeds........................... 128
(10) Preservation of Property................................128
Rule F. Limitation of Liability:
(1) Time for Filing Complaint; Security......................128
(2) Complaint................................................129
(3) Claims Against Owner; Injunction.........................129
(4) Notice to Claimants......................................129
(5) Claims and Answer........................................130
(6) Information To Be Given Claimants........................130
(7) Insufficiency of Fund or Security........................130
(8) Objections to Claims: Distribution of Fund...............130
(9) Venue; Transfer..........................................130
Rule G. Forfeiture Actions In Rem:
(1) Scope....................................................131
(2) Complaint................................................131
(3) Judicial Authorization and Process:
(a) Real Property............................. 131
(b) Other Property; Arrest Warrant............ 131
(c) Execution of Process...................... 131
(4) Notice:
(a) Notice by Publication..................... 132
(b) Notice to Known Potential Claimants....... 133
(5) Responsive Pleadings:
(a) Filing a Claim............................ 133
(b) Answer.................................... 134
(6) Special Interrogatories:
(a) Time and Scope............................ 134
(b) Answers or Objections..................... 134
(c) Government's Response Deferred............ 134
(7) Preserving, Preventing Criminal Use, and Disposing
of Property; Sales:
(a) Preserving and Preventing Criminal Use of
Property.................................. 134
(b) Interlocutory Sale or Delivery............ 135
(c) Disposing of Forfeited Property........... 135
(8) Motions:
(a) Motion To Suppress Use of the Property as
Evidence.................................. 135
(b) Motion To Dismiss the Action.............. 135
(c) Motion To Strike a Claim or Answer........ 135
(d) Petition To Release Property.............. 136
(e) Excessive Fines........................... 136
(9) Trial....................................................136
FEDERAL RULES OF CIVIL PROCEDURE
RULES OF CIVIL PROCEDURE
FOR THE
UNITED STATES DISTRICT COURTS \1\
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\1\ Title amended December 29, 1948, effective October 20, 1949.
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Effective September 16, 1938, as amended to December 1, 2006
I. SCOPE OF RULES--ONE FORM OF ACTION
Rule 1
. Scope and Purpose of Rules______________________________________
These rules govern the procedure in the United States district
courts in all suits of a civil nature whether cognizable as cases at law
or in equity or in admiralty, with the exceptions stated in Rule 81.
They shall be construed and administered to secure the just, speedy, and
inexpensive determination of every action.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July
1, 1966; Apr. 22, 1993, eff. Dec. 1, 1993.)
Rule 2
One Form of Action______________________________________________
There shall be one form of action to be known as ``civil action.''
II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND
ORDERS
Rule 3
Commencement of Action__________________________________________
A civil action is commenced by filing a complaint with the court.
Rule 4
Summons_________________________________________________________
(a) Form. The summons shall be signed by the clerk, bear the seal of
the court, identify the court and the parties, be directed to the
defendant, and state the name and address of the plaintiff's attorney
or, if unrepresented, of the plaintiff. It shall also state the time
within which the defendant must appear and defend, and notify the
defendant that failure to do so will result in a judgment by default
against the defendant for the relief demanded in the complaint. The
court may allow a summons to be amended.
(b) Issuance. Upon or after filing the complaint, the plaintiff may
present a summons to the clerk for signature and seal. If the summons is
in proper form, the clerk shall sign, seal, and issue it to the
plaintiff for service on the defendant. A summons, or a copy of the
summons if addressed to multiple defendants, shall be issued for each
defendant to be served.
(c) Service with Complaint; by Whom Made.
(1) A summons shall be served together with a copy of the
complaint. The plaintiff is responsible for service of a summons
and complaint within the time allowed under subdivision (m) and
shall furnish the person effecting service with the necessary
copies of the summons and complaint.
(2) Service may be effected by any person who is not a party
and who is at least 18 years of age. At the request of the
plaintiff, however, the court may direct that service be
effected by a United States marshal, deputy United States
marshal, or other person or officer specially appointed by the
court for that purpose. Such an appointment must be made when
the plaintiff is authorized to proceed in forma pauperis
pursuant to 28 U.S.C. Sec. 1915 or is authorized to proceed as a
seaman under 28 U.S.C. Sec. 1916.
(d) Waiver of Service; Duty to Save Costs of Service; Request to
Waive.
(1) A defendant who waives service of a summons does not
thereby waive any objection to the venue or to the jurisdiction
of the court over the person of the defendant.
(2) An individual, corporation, or association that is
subject to service under subdivision (e), (f), or (h) and that
receives notice of an action in the manner provided in this
paragraph has a duty to avoid unnecessary costs of serving the
summons. To avoid costs, the plaintiff may notify such a
defendant of the commencement of the action and request that the
defendant waive service of a summons. The notice and request
(A) shall be in writing and shall be addressed
directly to the defendant, if an individual, or else to
an officer or managing or general agent (or other agent
authorized by appointment or law to receive service of
process) of a defendant subject to service under
subdivision (h);
(B) shall be dispatched through first-class mail or
other reliable means;
(C) shall be accompanied by a copy of the complaint
and shall identify the court in which it has been filed;
(D) shall inform the defendant, by means of a text
prescribed in an official form promulgated pursuant to
Rule 84, of the consequences of compliance and of a
failure to comply with the request;
(E) shall set forth the date on which the request is
sent;
(F) shall allow the defendant a reasonable time to
return the waiver, which shall be at least 30 days from
the date on which the request is sent, or 60 days from
that date if the defendant is addressed outside any
judicial district of the United States; and
(G) shall provide the defendant with an extra copy
of the notice and request, as well as a prepaid means of
compliance in writing.
If a defendant located within the United States fails to comply
with a request for waiver made by a plaintiff located within the
United States, the court shall impose the costs subsequently
incurred in effecting service on the defendant unless good cause
for the failure be shown.
(3) A defendant that, before being served with process,
timely returns a waiver so requested is not required to serve an
answer to the complaint until 60 days after the date on which
the request for waiver of service was sent, or 90 days after
that date if the defendant was addressed outside any judicial
district of the United States.
(4) When the plaintiff files a waiver of service with the
court, the action shall proceed, except as provided in paragraph
(3), as if a summons and complaint had been served at the time
of filing the waiver, and no proof of service shall be required.
(5) The costs to be imposed on a defendant under paragraph
(2) for failure to comply with a request to waive service of a
summons shall include the costs subsequently incurred in
effecting service under subdivision (e), (f), or (h), together
with the costs, including a reasonable attorney's fee, of any
motion required to collect the costs of service.
(e) Service Upon Individuals Within a Judicial District of the
United States. Unless otherwise provided by federal law, service upon an
individual from whom a waiver has not been obtained and filed, other
than an infant or an incompetent person, may be effected in any judicial
district of the United States:
(1) pursuant to the law of the state in which the district
court is located, or in which service is effected, for the
service of a summons upon the defendant in an action brought in
the courts of general jurisdiction of the State; or
(2) by delivering a copy of the summons and of the complaint
to the individual personally or by leaving copies thereof at the
individual's dwelling house or usual place of abode with some
person of suitable age and discretion then residing therein or
by delivering a copy of the summons and of the complaint to an
agent authorized by appointment or by law to receive service of
process.
(f) Service Upon Individuals in a Foreign Country. Unless otherwise
provided by federal law, service upon an individual from whom a waiver
has not been obtained and filed, other than an infant or an incompetent
person, may be effected in a place not within any judicial district of
the United States:
(1) by any internationally agreed means reasonably
calculated to give notice, such as those means authorized by the
Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents; or
(2) if there is no internationally agreed means of service
or the applicable international agreement allows other means of
service, provided that service is reasonably calculated to give
notice:
(A) in the manner prescribed by the law of the
foreign country for service in that country in an action
in any of its courts of general jurisdiction; or
(B) as directed by the foreign authority in response
to a letter rogatory or letter of request; or
(C) unless prohibited by the law of the foreign
country, by
(i) delivery to the individual personally of
a copy of the summons and the complaint; or
(ii) any form of mail requiring a signed
receipt, to be addressed and dispatched by the
clerk of the court to the party to be served; or
(3) by other means not prohibited by international agreement
as may be directed by the court.
(g) Service Upon Infants and Incompetent Persons. Service upon an
infant or an incompetent person in a judicial district of the United
States shall be effected in the manner prescribed by the law of the
state in which the service is made for the service of summons or other
like process upon any such defendant in an action brought in the courts
of general jurisdiction of that state. Service upon an infant or an
incompetent person in a place not within any judicial district of the
United States shall be effected in the manner prescribed by paragraph
(2)(A) or (2)(B) of subdivision (f) or by such means as the court may
direct.
(h) Service Upon Corporations and Associations. Unless otherwise
provided by federal law, service upon a domestic or foreign corporation
or upon a partnership or other unincorporated association that is
subject to suit under a common name, and from which a waiver of service
has not been obtained and filed, shall be effected:
(1) in a judicial district of the United States in the
manner prescribed for individuals by subdivision (e)(1), or by
delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive service of
process and, if the agent is one authorized by statute to
receive service and the statute so requires, by also mailing a
copy to the defendant, or
(2) in a place not within any judicial district of the
United States in any manner prescribed for individuals by
subdivision (f) except personal delivery as provided in
paragraph (2)(C)(i) thereof.
(i) Serving the United States, Its Agencies, Corporations, Officers,
or Employees.
(1) Service upon the United States shall be effected
(A) by delivering a copy of the summons and of the
complaint to the United States attorney for the district
in which the action is brought or to an assistant United
States attorney or clerical employee designated by the
United States attorney in a writing filed with the clerk
of the court or by sending a copy of the summons and of
the complaint by registered or certified mail addressed
to the civil process clerk at the office of the United
States attorney and
(B) by also sending a copy of the summons and of the
complaint by registered or certified mail to the
Attorney General of the United States at Washington,
District of Columbia, and
(C) in any action attacking the validity of an order
of an officer or agency of the United States not made a
party, by also sending a copy of the summons and of the
complaint by registered or certified mail to the officer
or agency.
(2)(A) Service on an agency or corporation of the United
States, or an officer or employee of the United States sued only
in an official capacity, is effected by serving the United
States in the manner prescribed by Rule 4(i)(1) and by also
sending a copy of the summons and complaint by registered or
certified mail to the officer, employee, agency, or corporation.
(B) Service on an officer or employee of the United States
sued in an individual capacity for acts or omissions occurring
in connection with the performance of duties on behalf of the
United States--whether or not the officer or employee is sued
also in an official capacity--is effected by serving the United
States in the manner prescribed by Rule 4(i)(1) and by serving
the officer or employee in the manner prescribed by Rule 4(e),
(f), or (g).
(3) The court shall allow a reasonable time to serve process
under Rule 4(i) for the purpose of curing the failure to serve:
(A) all persons required to be served in an action
governed by Rule 4(i)(2)(A), if the plaintiff has served
either the United States attorney or the Attorney
General of the United States, or
(B) the United States in an action governed by Rule
4(i)(2)(B), if the plaintiff has served an officer or
employee of the United States sued in an individual
capacity.
(j) Service Upon Foreign, State, or Local Governments.
(1) Service upon a foreign state or a political subdivision,
agency, or instrumentality thereof shall be effected pursuant to
28 U.S.C. Sec. 1608.
(2) Service upon a state, municipal corporation, or other
governmental organization subject to suit shall be effected by
delivering a copy of the summons and of the complaint to its
chief executive officer or by serving the summons and complaint
in the manner prescribed by the law of that state for the
service of summons or other like process upon any such
defendant.
(k) Territorial Limits of Effective Service.
(1) Service of a summons or filing a waiver of service is
effective to establish jurisdiction over the person of a
defendant
(A) who could be subjected to the jurisdiction of a
court of general jurisdiction in the state in which the
district court is located, or
(B) who is a party joined under Rule 14 or Rule 19
and is served at a place within a judicial district of
the United States and not more than 100 miles from the
place from which the summons issues, or
(C) who is subject to the federal interpleader
jurisdiction under 28 U.S.C. Sec. 1335, or
(D) when authorized by a statute of the United
States.
(2) If the exercise of jurisdiction is consistent with the
Constitution and laws of the United States, serving a summons or
filing a waiver of service is also effective, with respect to
claims arising under federal law, to establish personal
jurisdiction over the person of any defendant who is not subject
to the jurisdiction of the courts of general jurisdiction of any
state.
(l) Proof of Service. If service is not waived, the person effecting
service shall make proof thereof to the court. If service is made by a
person other than a United States marshal or deputy United States
marshal, the person shall make affidavit thereof. Proof of service in a
place not within any judicial district of the United States shall, if
effected under paragraph (1) of subdivision (f), be made pursuant to the
applicable treaty or convention, and shall, if effected under paragraph
(2) or (3) thereof, include a receipt signed by the addressee or other
evidence of delivery to the addressee satisfactory to the court. Failure
to make proof of service does not affect the validity of the service.
The court may allow proof of service to be amended.
(m) Time Limit for Service. If service of the summons and complaint
is not made upon a defendant within 120 days after the filing of the
complaint, the court, upon motion or on its own initiative after notice
to the plaintiff, shall dismiss the action without prejudice as to that
defendant or direct that service be effected within a specified time;
provided that if the plaintiff shows good cause for the failure, the
court shall extend the time for service for an appropriate period. This
subdivision does not apply to service in a foreign country pursuant to
subdivision (f) or (j)(1).
(n) Seizure of Property; Service of Summons Not Feasible.
(1) If a statute of the United States so provides, the court
may assert jurisdiction over property. Notice to claimants of
the property shall then be sent in the manner provided by the
statute or by service of a summons under this rule.
(2) Upon a showing that personal jurisdiction over a
defendant cannot, in the district where the action is brought,
be obtained with reasonable efforts by service of summons in any
manner authorized by this rule, the court may assert
jurisdiction over any of the defendant's assets found within the
district by seizing the assets under the circumstances and in
the manner provided by the law of the state in which the
district court is located.
(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July
1, 1966; Apr. 29, 1980, eff. Aug. 1, 1980; Jan. 12, 1983, eff. Feb. 26,
1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993;
Apr. 17, 2000, eff. Dec. 1, 2000.)
Rule 4.1
Service of Other Process________________________________________
(a) Generally. Process other than a summons as provided in Rule 4 or
subpoena as provided in Rule 45 shall be served by a United States
marshal, a deputy United States marshal, or a person specially appointed
for that purpose, who shall make proof of service as provided in Rule
4(l). The process may be served anywhere within the territorial limits
of the state in which the district court is located, and, when
authorized by a statute of the United States, beyond the territorial
limits of that state.
(b) Enforcement of Orders: Commitment for Civil Contempt. An order
of civil commitment of a person held to be in contempt of a decree or
injunction issued to enforce the laws of the United States may be served
and enforced in any district. Other orders in civil contempt proceedings
shall be served in the state in which the court issuing the order to be
enforced is located or elsewhere within the United States if not more
than 100 miles from the place at which the order to be enforced was
issued.
(As added Apr. 22, 1993, eff. Dec. 1, 1993.)
Rule 5
Service and Filing of Pleadings and Other Papers________________
(a) Service: When Required. Except as otherwise provided in these
rules, every order required by its terms to be served, every pleading
subsequent to the original complaint unless the court otherwise orders
because of numerous defendants, every paper relating to discovery
required to be served upon a party unless the court otherwise orders,
every written motion other than one which may be heard ex parte, and
every written notice, appearance, demand, offer of judgment, designation
of record on appeal, and similar paper shall be served upon each of the
parties. No service need be made on parties in default for failure to
appear except that pleadings asserting new or additional claims for
relief against them shall be served upon them in the manner provided for
service of summons in Rule 4.
In an action begun by seizure of property, in which no person need
be or is named as defendant, any service required to be made prior to
the filing of an answer, claim, or appearance shall be made upon the
person having custody or possession of the property at the time of its
seizure.
(b) Making Service.
(1) Service under Rules 5(a) and 77(d) on a party
represented by an attorney is made on the attorney unless the
court orders service on the party.
(2) Service under Rule 5(a) is made by:
(A) Delivering a copy to the person served by:
(i) handing it to the person;
(ii) leaving it at the person's office with
a clerk or other person in charge, or if no one
is in charge leaving it in a conspicuous place
in the office; or
(iii) if the person has no office or the
office is closed, leaving it at the person's
dwelling house or usual place of abode with
someone of suitable age and discretion residing
there.
(B) Mailing a copy to the last known address of the
person served. Service by mail is complete on mailing.
(C) If the person served has no known address,
leaving a copy with the clerk of the court.
(D) Delivering a copy by any other means, including
electronic means, consented to in writing by the person
served. Service by electronic means is complete on
transmission; service by other consented means is
complete when the person making service delivers the
copy to the agency designated to make delivery. If
authorized by local rule, a party may make service under
this subparagraph (D) through the court's transmission
facilities.
(3) Service by electronic means under Rule 5(b)(2)(D) is not
effective if the party making service learns that the attempted
service did not reach the person to be served.
(c) Same: Numerous Defendants. In any action in which there are
unusually large numbers of defendants, the court, upon motion or of its
own initiative, may order that service of the pleadings of the
defendants and replies thereto need not be made as between the
defendants and that any cross-claim, counterclaim, or matter
constituting an avoidance or affirmative defense contained therein shall
be deemed to be denied or avoided by all other parties and that the
filing of any such pleading and service thereof upon the plaintiff
constitutes due notice of it to the parties. A copy of every such order
shall be served upon the parties in such manner and form as the court
directs.
(d) Filing; Certificate of Service. All papers after the complaint
required to be served upon a party, together with a certificate of
service, must be filed with the court within a reasonable time after
service, but disclosures under Rule 26(a)(1) or (2) and the following
discovery requests and responses must not be filed until they are used
in the proceeding or the court orders filing: (i) depositions, (ii)
interrogatories, (iii) requests for documents or to permit entry upon
land, and (iv) requests for admission.
(e) Filing with the Court Defined. The filing of papers with the
court as required by these rules shall be made by filing them with the
clerk of court, except that the judge may permit the papers to be filed
with the judge, in which event the judge shall note thereon the filing
date and forthwith transmit them to the office of the clerk. A court may
by local rule permit or require papers to be filed, signed, or verified
by electronic means that are consistent with technical standards, if
any, that the Judicial Conference of the United States establishes. A
local rule may require filing by electronic means only if reasonable
exceptions are allowed. A paper filed by electronic means in compliance
with a local rule constitutes a written paper for the purpose of
applying these rules. The clerk shall not refuse to accept for filing
any paper presented for that purpose solely because it is not presented
in proper form as required by these rules or any local rules or
practices.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff. July
1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 17, 2000, eff. Dec. 1,
2000; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 12, 2006, eff. Dec. 1,
2006.)
Rule 5.1
Constitutional Challenge to a Statute--Notice, Certification,
and Intervention________________________________________________________
(a) Notice by a Party. A party that files a pleading, written
motion, or other paper drawing into question the constitutionality of a
federal or state statute must promptly:
(1) file a notice of constitutional question stating the
question and identifying the paper that raises it, if:
(A) a federal statute is questioned and neither the
United States nor any of its agencies, officers, or
employees is a party in an official capacity, or
(B) a state statute is questioned and neither the
state nor any of its agencies, officers, or employees is
a party in an official capacity; and
(2) serve the notice and paper on the Attorney General of
the United States if a federal statute is challenged--or on the
state attorney general if a state statute is challenged--either
by certified or registered mail or by sending it to an
electronic address designated by the attorney general for this
purpose.
(b) Certification by the Court. The court must, under 28 U.S.C.
Sec. 2403, certify to the Attorney General of the United States that
there is a constitutional challenge to a federal statute, or certify to
the state attorney general that there is a constitutional challenge to a
state statute.
(c) Intervention; Final Decision on the Merits. Unless the court
sets a later time, the attorney general may intervene within 60 days
after the notice of constitutional question is filed or after the court
certifies the challenge, whichever is earlier. Before the time to
intervene expires, the court may reject the constitutional challenge,
but may not enter a final judgment holding the statute unconstitutional.
(d) No Forfeiture. A party's failure to file and serve the notice,
or the court's failure to certify, does not forfeit a constitutional
claim or defense that is otherwise timely asserted.
(As added Apr. 12, 2006, eff. Dec. 1, 2006.)
Rule 6
Time____________________________________________________________
(a) Computation. In computing any period of time prescribed or
allowed by these rules, by the local rules of any district court, by
order of court, or by any applicable statute, the day of the act, event,
or default from which the designated period of time begins to run shall
not be included. The last day of the period so computed shall be
included, unless it is a Saturday, a Sunday, or a legal holiday, or,
when the act to be done is the filing of a paper in court, a day on
which weather or other conditions have made the office of the clerk of
the district court inaccessible, in which event the period runs until
the end of the next day which is not one of the aforementioned days.
When the period of time prescribed or allowed is less than 11 days,
intermediate Saturdays, Sundays, and legal holidays shall be excluded in
the computation. As used in this rule and in Rule 77(c), ``legal
holiday'' includes New Year's Day, Birthday of Martin Luther King, Jr.,
Washington's Birthday, Memorial Day, Independence Day, Labor Day,
Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any
other day appointed as a holiday by the President or the Congress of the
United States, or by the state in which the district court is held.
(b) Enlargement. When by these rules or by a notice given thereunder
or by order of court an act is required or allowed to be done at or
within a specified time, the court for cause shown may at any time in
its discretion (1) with or without motion or notice order the period
enlarged if request therefor is made before the expiration of the period
originally prescribed or as extended by a previous order, or (2) upon
motion made after the expiration of the specified period permit the act
to be done where the failure to act was the result of excusable neglect;
but it may not extend the time for taking any action under Rules 50(b)
and (c)(2), 52(b), 59(b), (d) and (e), and 60(b), except to the extent
and under the conditions stated in them.
[(c) Unaffected by Expiration of Term.] (Rescinded Feb. 28, 1966,
eff. July 1, 1966)
(d) For Motions--Affidavits. A written motion, other than one which
may be heard ex parte, and notice of the hearing thereof shall be served
not later than 5 days before the time specified for the hearing, unless
a different period is fixed by these rules or by order of the court.
Such an order may for cause shown be made on ex parte application. When
a motion is supported by affidavit, the affidavit shall be served with
the motion; and, except as otherwise provided in Rule 59(c), opposing
affidavits may be served not later than 1 day before the hearing, unless
the court permits them to be served at some other time.
(e) Additional Time After Certain Kinds of Service. Whenever a party
must or may act within a prescribed period after service and service is
made under Rule 5(b)(2)(B), (C), or (D), 3 days are added after the
prescribed period would otherwise expire under subdivision (a).
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1,
1968; Mar. 1, 1971, eff. July 1, 1971; Apr. 28, 1983, eff. Aug. 1, 1983;
Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr.
26, 1999, eff. Dec. 1, 1999; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 25,
2005, eff. Dec. 1, 2005.)
III. PLEADINGS AND MOTIONS
Rule 7
Pleadings Allowed; Form of Motions______________________________
(a) Pleadings. There shall be a complaint and an answer; a reply to
a counterclaim denominated as such; an answer to a cross-claim, if the
answer contains a cross-claim; a third-party complaint, if a person who
was not an original party is summoned under the provisions of Rule 14;
and a third-party answer, if a third-party complaint is served. No other
pleading shall be allowed, except that the court may order a reply to an
answer or a third-party answer.
(b) Motions and Other Papers.
(1) An application to the court for an order shall be by
motion which, unless made during a hearing or trial, shall be
made in writing, shall state with particularity the grounds
therefor, and shall set forth the relief or order sought. The
requirement of writing is fulfilled if the motion is stated in a
written notice of the hearing of the motion.
(2) The rules applicable to captions and other matters of
form of pleadings apply to all motions and other papers provided
for by these rules.
(3) All motions shall be signed in accordance with Rule 11.
(c) Demurrers, Pleas, Etc., Abolished. Demurrers, pleas, and
exceptions for insufficiency of a pleading shall not be used.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983.)
Rule 7.1
Disclosure Statement____________________________________________
(a) Who Must File: Nongovernmental Corporate Party. A
nongovernmental corporate party to an action or proceeding in a district
court must file two copies of a statement that identifies any parent
corporation and any publicly held corporation that owns 10% or more of
its stock or states that there is no such corporation.
(b) Time for Filing; Supplemental Filing. A party must:
(1) file the Rule 7.1(a) statement with its first
appearance, pleading, petition, motion, response, or other
request addressed to the court, and
(2) promptly file a supplemental statement upon any change
in the information that the statement requires.
(As added Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 8
General Rules of Pleading_______________________________________
(a) Claims for Relief. A pleading which sets forth a claim for
relief, whether an original claim, counterclaim, cross-claim, or third-
party claim, shall contain (1) a short and plain statement of the
grounds upon which the court's jurisdiction depends, unless the court
already has jurisdiction and the claim needs no new grounds of
jurisdiction to support it, (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for
judgment for the relief the pleader seeks. Relief in the alternative or
of several different types may be demanded.
(b) Defenses; Form of Denials. A party shall state in short and
plain terms the party's defenses to each claim asserted and shall admit
or deny the averments upon which the adverse party relies. If a party is
without knowledge or information sufficient to form a belief as to the
truth of an averment, the party shall so state and this has the effect
of a denial. Denials shall fairly meet the substance of the averments
denied. When a pleader intends in good faith to deny only a part or a
qualification of an averment, the pleader shall specify so much of it as
is true and material and shall deny only the remainder. Unless the
pleader intends in good faith to controvert all the averments of the
preceding pleading, the pleader may make denials as specific denials of
designated averments or paragraphs or may generally deny all the
averments except such designated averments or paragraphs as the pleader
expressly admits; but, when the pleader does so intend to controvert all
its averments, including averments of the grounds upon which the court's
jurisdiction depends, the pleader may do so by general denial subject to
the obligations set forth in Rule 11.
(c) Affirmative Defenses. In pleading to a preceding pleading, a
party shall set forth affirmatively accord and satisfaction, arbitration
and award, assumption of risk, contributory negligence, discharge in
bankruptcy, duress, estoppel, failure of consideration, fraud,
illegality, injury by fellow servant, laches, license, payment, release,
res judicata, statute of frauds, statute of limitations, waiver, and any
other matter constituting an avoidance or affirmative defense. When a
party has mistakenly designated a defense as a counterclaim or a
counterclaim as a defense, the court on terms, if justice so requires,
shall treat the pleading as if there had been a proper designation.
(d) Effect of Failure To Deny. Averments in a pleading to which a
responsive pleading is required, other than those as to the amount of
damage, are admitted when not denied in the responsive pleading.
Averments in a pleading to which no responsive pleading is required or
permitted shall be taken as denied or avoided.
(e) Pleading To Be Concise and Direct; Consistency.
(1) Each averment of a pleading shall be simple, concise,
and direct. No technical forms of pleading or motions are
required.
(2) A party may set forth two or more statements of a claim
or defense alternately or hypothetically, either in one count or
defense or in separate counts or defenses. When two or more
statements are made in the alternative and one of them if made
independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the
alternative statements. A party may also state as many separate
claims or defenses as the party has regardless of consistency
and whether based on legal, equitable, or maritime grounds. All
statements shall be made subject to the obligations set forth in
Rule 11.
(f) Construction of Pleadings. All pleadings shall be so construed
as to do substantial justice.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987.)
Rule 9
Pleading Special Matters________________________________________
(a) Capacity. It is not necessary to aver the capacity of a party to
sue or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized
association of persons that is made a party, except to the extent
required to show the jurisdiction of the court. When a party desires to
raise an issue as to the legal existence of any party or the capacity of
any party to sue or be sued or the authority of a party to sue or be
sued in a representative capacity, the party desiring to raise the issue
shall do so by specific negative averment, which shall include such
supporting particulars as are peculiarly within the pleader's knowledge.
(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud
or mistake, the circumstances constituting fraud or mistake shall be
stated with particularity. Malice, intent, knowledge, and other
condition of mind of a person may be averred generally.
(c) Conditions Precedent. In pleading the performance or occurrence
of conditions precedent, it is sufficient to aver generally that all
conditions precedent have been performed or have occurred. A denial of
performance or occurrence shall be made specifically and with
particularity.
(d) Official Document or Act. In pleading an official document or
official act it is sufficient to aver that the document was issued or
the act done in compliance with law.
(e) Judgment. In pleading a judgment or decision of a domestic or
foreign court, judicial or quasi-judicial tribunal, or of a board or
officer, it is sufficient to aver the judgment or decision without
setting forth matter showing jurisdiction to render it.
(f) Time and Place. For the purpose of testing the sufficiency of a
pleading, averments of time and place are material and shall be
considered like all other averments of material matter.
(g) Special Damage. When items of special damage are claimed, they
shall be specifically stated.
(h) Admiralty and Maritime Claims. A pleading or count setting forth
a claim for relief within the admiralty and maritime jurisdiction that
is also within the jurisdiction of the district court on some other
ground may contain a statement identifying the claim as an admiralty or
maritime claim for the purposes of Rules 14(c), 38(e), and 82, and the
Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions. If the claim is cognizable only in admiralty, it is an
admiralty or maritime claim for those purposes whether so identified or
not. The amendment of a pleading to add or withdraw an identifying
statement is governed by the principles of Rule 15. A case that includes
an admiralty or maritime claim within this subdivision is an admiralty
case within 28 U.S.C. Sec. 1292(a)(3).
(As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1,
1968; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 12, 2006, eff. Dec. 1, 2006.)
Rule 10
Form of Pleadings_______________________________________________
(a) Caption; Names of Parties. Every pleading shall contain a
caption setting forth the name of the court, the title of the action,
the file number, and a designation as in Rule 7(a). In the complaint the
title of the action shall include the names of all the parties, but in
other pleadings it is sufficient to state the name of the first party on
each side with an appropriate indication of other parties.
(b) Paragraphs; Separate Statements. All averments of claim or
defense shall be made in numbered paragraphs, the contents of each of
which shall be limited as far as practicable to a statement of a single
set of circumstances; and a paragraph may be referred to by number in
all succeeding pleadings. Each claim founded upon a separate transaction
or occurrence and each defense other than denials shall be stated in a
separate count or defense whenever a separation facilitates the clear
presentation of the matters set forth.
(c) Adoption by Reference; Exhibits. Statements in a pleading may be
adopted by reference in a different part of the same pleading or in
another pleading or in any motion. A copy of any written instrument
which is an exhibit to a pleading is a part thereof for all purposes.
Rule 11
Signing of Pleadings, Motions, and Other Papers; Representations
to Court; Sanctions_____________________________________________________
(a) Signature. Every pleading, written motion, and other paper shall
be signed by at least one attorney of record in the attorney's
individual name, or, if the party is not represented by an attorney,
shall be signed by the party. Each paper shall state the signer's
address and telephone number, if any. Except when otherwise specifically
provided by rule or statute, pleadings need not be verified or
accompanied by affidavit. An unsigned paper shall be stricken unless
omission of the signature is corrected promptly after being called to
the attention of the attorney or party.
(b) Representations to Court. By presenting to the court (whether by
signing, filing, submitting, or later advocating) a pleading, written
motion, or other paper, an attorney or unrepresented party is certifying
that to the best of the person's knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances,--
(1) it is not being presented for any improper purpose, such
as to harass or to cause unnecessary delay or needless increase
in the cost of litigation;
(2) the claims, defenses, and other legal contentions
therein are warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal of
existing law or the establishment of new law;
(3) the allegations and other factual contentions have
evidentiary support or, if specifically so identified, are
likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based
on a lack of information or belief.
(c) Sanctions. If, after notice and a reasonable opportunity to
respond, the court determines that subdivision (b) has been violated,
the court may, subject to the conditions stated below, impose an
appropriate sanction upon the attorneys, law firms, or parties that have
violated subdivision (b) or are responsible for the violation.
(1) How Initiated.
(A) By Motion. A motion for sanctions under this
rule shall be made separately from other motions or
requests and shall describe the specific conduct alleged
to violate subdivision (b). It shall be served as
provided in Rule 5, but shall not be filed with or
presented to the court unless, within 21 days after
service of the motion (or such other period as the court
may prescribe), the challenged paper, claim, defense,
contention, allegation, or denial is not withdrawn or
appropriately corrected. If warranted, the court may
award to the party prevailing on the motion the
reasonable expenses and attorney's fees incurred in
presenting or opposing the motion. Absent exceptional
circumstances, a law firm shall be held jointly
responsible for violations committed by its partners,
associates, and employees.
(B) On Court's Initiative. On its own initiative,
the court may enter an order describing the specific
conduct that appears to violate subdivision (b) and
directing an attorney, law firm, or party to show cause
why it has not violated subdivision (b) with respect
thereto.
(2) Nature of Sanction; Limitations. A sanction imposed for
violation of this rule shall be limited to what is sufficient to
deter repetition of such conduct or comparable conduct by others
similarly situated. Subject to the limitations in subparagraphs
(A) and (B), the sanction may consist of, or include, directives
of a nonmonetary nature, an order to pay a penalty into court,
or, if imposed on motion and warranted for effective deterrence,
an order directing payment to the movant of some or all of the
reasonable attorneys' fees and other expenses incurred as a
direct result of the violation.
(A) Monetary sanctions may not be awarded against a
represented party for a violation of subdivision (b)(2).
(B) Monetary sanctions may not be awarded on the
court's initiative unless the court issues its order to
show cause before a voluntary dismissal or settlement of
the claims made by or against the party which is, or
whose attorneys are, to be sanctioned.
(3) Order. When imposing sanctions, the court shall describe
the conduct determined to constitute a violation of this rule
and explain the basis for the sanction imposed.
(d) Inapplicability to Discovery. Subdivisions (a) through (c) of
this rule do not apply to disclosures and discovery requests, responses,
objections, and motions that are subject to the provisions of Rules 26
through 37.
(As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993.)
Rule 12
Defenses and Objections--When and How Presented--By Pleading or
Motion--Motion for Judgment on the Pleadings____________________________
(a) When Presented.
(1) Unless a different time is prescribed in a statute of
the United States, a defendant shall serve an answer
(A) within 20 days after being served with the
summons and complaint, or
(B) if service of the summons has been timely waived
on request under Rule 4(d), within 60 days after the
date when the request for waiver was sent, or within 90
days after that date if the defendant was addressed
outside any judicial district of the United States.
(2) A party served with a pleading stating a cross-claim
against that party shall serve an answer thereto within 20 days
after being served. The plaintiff shall serve a reply to a
counterclaim in the answer within 20 days after service of the
answer, or, if a reply is ordered by the court, within 20 days
after service of the order, unless the order otherwise directs.
(3)(A) The United States, an agency of the United States, or
an officer or employee of the United States sued in an official
capacity, shall serve an answer to the complaint or cross-
claim--or a reply to a counterclaim--within 60 days after the
United States attorney is served with the pleading asserting the
claim.
(B) An officer or employee of the United States sued in an
individual capacity for acts or omissions occurring in
connection with the performance of duties on behalf of the
United States shall serve an answer to the complaint or cross-
claim--or a reply to a counterclaim--within 60 days after
service on the officer or employee, or service on the United
States attorney, whichever is later.
(4) Unless a different time is fixed by court order, the
service of a motion permitted under this rule alters these
periods of time as follows:
(A) if the court denies the motion or postpones its
disposition until the trial on the merits, the
responsive pleading shall be served within 10 days after
notice of the court's action; or
(B) if the court grants a motion for a more definite
statement, the responsive pleading shall be served
within 10 days after the service of the more definite
statement.
(b) How Presented. Every defense, in law or fact, to a claim for
relief in any pleading, whether a claim, counterclaim, cross-claim, or
third-party claim, shall be asserted in the responsive pleading thereto
if one is required, except that the following defenses may at the option
of the pleader be made by motion: (1) lack of jurisdiction over the
subject matter, (2) lack of jurisdiction over the person, (3) improper
venue, (4) insufficiency of process, (5) insufficiency of service of
process, (6) failure to state a claim upon which relief can be granted,
(7) failure to join a party under Rule 19. A motion making any of these
defenses shall be made before pleading if a further pleading is
permitted. No defense or objection is waived by being joined with one or
more other defenses or objections in a responsive pleading or motion. If
a pleading sets forth a claim for relief to which the adverse party is
not required to serve a responsive pleading, the adverse party may
assert at the trial any defense in law or fact to that claim for relief.
If, on a motion asserting the defense numbered (6) to dismiss for
failure of the pleading to state a claim upon which relief can be
granted, matters outside the pleading are presented to and not excluded
by the court, the motion shall be treated as one for summary judgment
and disposed of as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent to such a
motion by Rule 56.
(c) Motion for Judgment on the Pleadings. After the pleadings are
closed but within such time as not to delay the trial, any party may
move for judgment on the pleadings. If, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to and not
excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56, and all parties shall
be given reasonable opportunity to present all material made pertinent
to such a motion by Rule 56.
(d) Preliminary Hearings. The defenses specifically enumerated (1)-
(7) in subdivision (b) of this rule, whether made in a pleading or by
motion, and the motion for judgment mentioned in subdivision (c) of this
rule shall be heard and determined before trial on application of any
party, unless the court orders that the hearing and determination
thereof be deferred until the trial.
(e) Motion for More Definite Statement. If a pleading to which a
responsive pleading is permitted is so vague or ambiguous that a party
cannot reasonably be required to frame a responsive pleading, the party
may move for a more definite statement before interposing a responsive
pleading. The motion shall point out the defects complained of and the
details desired. If the motion is granted and the order of the court is
not obeyed within 10 days after notice of the order or within such other
time as the court may fix, the court may strike the pleading to which
the motion was directed or make such order as it deems just.
(f) Motion To Strike. Upon motion made by a party before responding
to a pleading or, if no responsive pleading is permitted by these rules,
upon motion made by a party within 20 days after the service of the
pleading upon the party or upon the court's own initiative at any time,
the court may order stricken from any pleading any insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter.
(g) Consolidation of Defenses in Motion. A party who makes a motion
under this rule may join with it any other motions herein provided for
and then available to the party. If a party makes a motion under this
rule but omits therefrom any defense or objection then available to the
party which this rule permits to be raised by motion, the party shall
not thereafter make a motion based on the defense or objection so
omitted, except a motion as provided in subdivision (h)(2) hereof on any
of the grounds there stated.
(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person,
improper venue, insufficiency of process, or insufficiency of
service of process is waived (A) if omitted from a motion in the
circumstances described in subdivision (g), or (B) if it is
neither made by motion under this rule nor included in a
responsive pleading or an amendment thereof permitted by Rule
15(a) to be made as a matter of course.
(2) A defense of failure to state a claim upon which relief
can be granted, a defense of failure to join a party
indispensable under Rule 19, and an objection of failure to
state a legal defense to a claim may be made in any pleading
permitted or ordered under Rule 7(a), or by motion for judgment
on the pleadings, or at the trial on the merits.
(3) Whenever it appears by suggestion of the parties or
otherwise that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1,
2000.)
Rule 13
Counterclaim and Cross-Claim____________________________________
(a) Compulsory Counterclaims. A pleading shall state as a
counterclaim any claim which at the time of serving the pleading the
pleader has against any opposing party, if it arises out of the
transaction or occurrence that is the subject matter of the opposing
party's claim and does not require for its adjudication the presence of
third parties of whom the court cannot acquire jurisdiction. But the
pleader need not state the claim if (1) at the time the action was
commenced the claim was the subject of another pending action, or (2)
the opposing party brought suit upon the claim by attachment or other
process by which the court did not acquire jurisdiction to render a
personal judgment on that claim, and the pleader is not stating any
counterclaim under this Rule 13.
(b) Permissive Counterclaims. A pleading may state as a counterclaim
any claim against an opposing party not arising out of the transaction
or occurrence that is the subject matter of the opposing party's claim.
(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may
not diminish or defeat the recovery sought by the opposing party. It may
claim relief exceeding in amount or different in kind from that sought
in the pleading of the opposing party.
(d) Counterclaim Against the United States. These rules shall not be
construed to enlarge beyond the limits now fixed by law the right to
assert counterclaims or to claim credits against the United States or an
officer or agency thereof.
(e) Counterclaim Maturing or Acquired After Pleading. A claim which
either matured or was acquired by the pleader after serving a pleading
may, with the permission of the court, be presented as a counterclaim by
supplemental pleading.
(f) Omitted Counterclaim. When a pleader fails to set up a
counterclaim through oversight, inadvertence, or excusable neglect, or
when justice requires, the pleader may by leave of court set up the
counterclaim by amendment.
(g) Cross-Claim Against Co-Party. A pleading may state as a cross-
claim any claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter either of the
original action or of a counterclaim therein or relating to any property
that is the subject matter of the original action. Such cross-claim may
include a claim that the party against whom it is asserted is or may be
liable to the cross-claimant for all or part of a claim asserted in the
action against the cross-claimant.
(h) Joinder of Additional Parties. Persons other than those made
parties to the original action may be made parties to a counterclaim or
cross-claim in accordance with the provisions of Rules 19 and 20.
(i) Separate Trials; Separate Judgments. If the court orders
separate trials as provided in Rule 42(b), judgment on a counterclaim or
cross-claim may be rendered in accordance with the terms of Rule 54(b)
when the court has jurisdiction so to do, even if the claims of the
opposing party have been dismissed or otherwise disposed of.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987.)
Rule 14
Third-Party Practice____________________________________________
(a) When Defendant May Bring in Third Party. At any time after
commencement of the action a defending party, as a third-party
plaintiff, may cause a summons and complaint to be served upon a person
not a party to the action who is or may be liable to the third-party
plaintiff for all or part of the plaintiff's claim against the third-
party plaintiff. The third-party plaintiff need not obtain leave to make
the service if the third-party plaintiff files the third-party complaint
not later than 10 days after serving the original answer. Otherwise the
third-party plaintiff must obtain leave on motion upon notice to all
parties to the action. The person served with the summons and third-
party complaint, hereinafter called the third-party defendant, shall
make any defenses to the third-party plaintiff's claim as provided in
Rule 12 and any counterclaims against the third-party plaintiff and
cross-claims against other third-party defendants as provided in Rule
13. The third-party defendant may assert against the plaintiff any
defenses which the third-party plaintiff has to the plaintiff's claim.
The third-party defendant may also assert any claim against the
plaintiff arising out of the transaction or occurrence that is the
subject matter of the plaintiff's claim against the third-party
plaintiff. The plaintiff may assert any claim against the third-party
defendant arising out of the transaction or occurrence that is the
subject matter of the plaintiff's claim against the third-party
plaintiff, and the third-party defendant thereupon shall assert any
defenses as provided in Rule 12 and any counterclaims and cross-claims
as provided in Rule 13. Any party may move to strike the third-party
claim, or for its severance or separate trial. A third-party defendant
may proceed under this rule against any person not a party to the action
who is or may be liable to the third-party defendant for all or part of
the claim made in the action against the third-party defendant. The
third-party complaint, if within the admiralty and maritime
jurisdiction, may be in rem against a vessel, cargo, or other property
subject to admiralty or maritime process in rem, in which case
references in this rule to the summons include the warrant of arrest,
and references to the third-party plaintiff or defendant include, where
appropriate, a person who asserts a right under Supplemental Rule
C(6)(a)(1) in the property arrested.
(b) When Plaintiff May Bring in Third Party. When a counterclaim is
asserted against a plaintiff, the plaintiff may cause a third party to
be brought in under circumstances which under this rule would entitle a
defendant to do so.
(c) Admiralty and Maritime Claims. When a plaintiff asserts an
admiralty or maritime claim within the meaning of Rule 9(h), the
defendant or person who asserts a right under Supplemental Rule
C(6)(a)(1), as a third-party plaintiff, may bring in a third-party
defendant who may be wholly or partly liable, either to the plaintiff or
to the third-party plaintiff, by way of remedy over, contribution, or
otherwise on account of the same transaction, occurrence, or series of
transactions or occurrences. In such a case the third-party plaintiff
may also demand judgment against the third-party defendant in favor of
the plaintiff, in which event the third-party defendant shall make any
defenses to the claim of the plaintiff as well as to that of the third-
party plaintiff in the manner provided in Rule 12 and the action shall
proceed as if the plaintiff had commenced it against the third-party
defendant as well as the third-party plaintiff.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1,
2006.)
Rule 15
Amended and Supplemental Pleadings______________________________
(a) Amendments. A party may amend the party's pleading once as a
matter of course at any time before a responsive pleading is served
or, if the pleading is one to which no responsive pleading is
permitted and the action has not been placed upon the trial calendar,
the party may so amend it at any time within 20 days after it is
served. Otherwise a party may amend the party's pleading only by
leave of court or by written consent of the adverse party; and leave
shall be freely given when justice so requires. A party shall plead
in response to an amended pleading within the time remaining for
response to the original pleading or within 10 days after service
of the amended pleading, whichever period may be the longer, unless
the court otherwise orders.
(b) Amendments To Conform to the Evidence. When issues not
raised by the pleadings are tried by express or implied consent of
the parties, they shall be treated in all respects as if they had
been raised in the pleadings. Such amendment of the pleadings as
may be necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at any
time, even after judgment; but failure so to amend does not affect
the result of the trial of these issues. If evidence is objected to
at the trial on the ground that it is not within the issues made
by the pleadings, the court may allow the pleadings to be amended
and shall do so freely when the presentation of the merits of
the action will be subserved thereby and the objecting party fails
to satisfy the court that the admission of such evidence would
prejudice the party in maintaining the party's action or defense
upon the merits.
The court may grant a continuance to enable the objecting party to
meet such evidence.
(c) Relation Back of Amendments. An amendment of a pleading
relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides the
statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set forth
or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the
party against whom a claim is asserted if the foregoing
provision (2) is satisfied and, within the period provided by
Rule 4(m) for service of the summons and complaint, the party to
be brought in by amendment (A) has received such notice of the
institution of the action that the party will not be prejudiced
in maintaining a defense on the merits, and (B) knew or should
have known that, but for a mistake concerning the identity of
the proper party, the action would have been brought against the
party.
The delivery or mailing of process to the United States
Attorney, or United States Attorney's designee, or the Attorney
General of the United States, or an agency or officer who would
have been a proper defendant if named, satisfies the requirement
of subparagraphs (A) and (B) of this paragraph (3) with respect
to the United States or any agency or officer thereof to be
brought into the action as a defendant.
(d) Supplemental Pleadings. Upon motion of a party the court may,
upon reasonable notice and upon such terms as are just, permit the party
to serve a supplemental pleading setting forth transactions or
occurrences or events which have happened since the date of the pleading
sought to be supplemented. Permission may be granted even though the
original pleading is defective in its statement of a claim for relief or
defense. If the court deems it advisable that the adverse party plead to
the supplemental pleading, it shall so order, specifying the time
therefor.
(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July
1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1,
1991; Dec. 9, 1991; Apr. 22, 1993, eff. Dec. 1, 1993.)
Rule 16
Pretrial Conferences; Scheduling; Management____________________
(a) Pretrial Conferences; Objectives. In any action, the court may
in its discretion direct the attorneys for the parties and any
unrepresented parties to appear before it for a conference or
conferences before trial for such purposes as
(1) expediting the disposition of the action;
(2) establishing early and continuing control so that the
case will not be protracted because of lack of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more thorough
preparation, and;
(5) facilitating the settlement of the case.
(b) Scheduling and Planning. Except in categories of actions
exempted by district court rule as inappropriate, the district judge, or
a magistrate judge when authorized by district court rule, shall, after
receiving the report from the parties under Rule 26(f) or after
consulting with the attorneys for the parties and any unrepresented
parties by a scheduling conference, telephone, mail, or other suitable
means, enter a scheduling order that limits the time
(1) to join other parties and to amend the pleadings;
(2) to file motions; and
(3) to complete discovery.
The scheduling order also may include
(4) modifications of the times for disclosures under Rules
26(a) and 26(e)(1) and of the extent of discovery to be
permitted;
(5) provisions for disclosure or discovery of electronically
stored information;
(6) any agreements the parties reach for asserting claims of
privilege or of protection as trial-preparation material after
production;
(7) the date or dates for conferences before trial, a final
pretrial conference, and trial; and
(8) any other matters appropriate in the circumstances of
the case.
The order shall issue as soon as practicable but in any event within 90
days after the appearance of a defendant and within 120 days after the
complaint has been served on a defendant. A schedule shall not be
modified except upon a showing of good cause and by leave of the
district judge or, when authorized by local rule, by a magistrate judge.
(c) Subjects for Consideration at Pretrial Conferences. At any
conference under this rule consideration may be given, and the court may
take appropriate action, with respect to
(1) the formulation and simplification of the issues,
including the elimination of frivolous claims or defenses;
(2) the necessity or desirability of amendments to the
pleadings;
(3) the possibility of obtaining admissions of fact and of
documents which will avoid unnecessary proof, stipulations
regarding the authenticity of documents, and advance rulings
from the court on the admissibility of evidence;
(4) the avoidance of unnecessary proof and of cumulative
evidence, and limitations or restrictions on the use of
testimony under Rule 702 of the Federal Rules of Evidence;
(5) the appropriateness and timing of summary adjudication
under Rule 56;
(6) the control and scheduling of discovery, including
orders affecting disclosures and discovery pursuant to Rule 26
and Rules 29 through 37;
(7) the identification of witnesses and documents, the need
and schedule for filing and exchanging pretrial briefs, and the
date or dates for further conferences and for trial;
(8) the advisability of referring matters to a magistrate
judge or master;
(9) settlement and the use of special procedures to assist
in resolving the dispute when authorized by statute or local
rule;
(10) the form and substance of the pretrial order;
(11) the disposition of pending motions;
(12) the need for adopting special procedures for managing
potentially difficult or protracted actions that may involve
complex issues, multiple parties, difficult legal questions, or
unusual proof problems;
(13) an order for a separate trial pursuant to Rule 42(b)
with respect to a claim, counterclaim, cross-claim, or third-
party claim, or with respect to any particular issue in the
case;
(14) an order directing a party or parties to present
evidence early in the trial with respect to a manageable issue
that could, on the evidence, be the basis for a judgment as a
matter of law under Rule 50(a) or a judgment on partial findings
under Rule 52(c);
(15) an order establishing a reasonable limit on the time
allowed for presenting evidence; and
(16) such other matters as may facilitate the just, speedy,
and inexpensive disposition of the action.
At least one of the attorneys for each party participating in any
conference before trial shall have authority to enter into stipulations
and to make admissions regarding all matters that the participants may
reasonably anticipate may be discussed. If appropriate, the court may
require that a party or its representative be present or reasonably
available by telephone in order to consider possible settlement of the
dispute.
(d) Final Pretrial Conference. Any final pretrial conference shall
be held as close to the time of trial as reasonable under the
circumstances. The participants at any such conference shall formulate a
plan for trial, including a program for facilitating the admission of
evidence. The conference shall be attended by at least one of the
attorneys who will conduct the trial for each of the parties and by any
unrepresented parties.
(e) Pretrial Orders. After any conference held pursuant to this
rule, an order shall be entered reciting the action taken. This order
shall control the subsequent course of the action unless modified by a
subsequent order. The order following a final pretrial conference shall
be modified only to prevent manifest injustice.
(f) Sanctions. If a party or party's attorney fails to obey a
scheduling or pretrial order, or if no appearance is made on behalf of a
party at a scheduling or pretrial conference, or if a party or party's
attorney is substantially unprepared to participate in the conference,
or if a party or party's attorney fails to participate in good faith,
the judge, upon motion or the judge's own initiative, may make such
orders with regard thereto as are just, and among others any of the
orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition
to any other sanction, the judge shall require the party or the attorney
representing the party or both to pay the reasonable expenses incurred
because of any noncompliance with this rule, including attorney's fees,
unless the judge finds that the noncompliance was substantially
justified or that other circumstances make an award of expenses unjust.
(As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 12, 2006, eff. Dec. 1,
2006.)
IV. PARTIES
Rule 17
Parties Plaintiff and Defendant; Capacity_______________________
(a) Real Party in Interest. Every action shall be prosecuted in the
name of the real party in interest. An executor, administrator,
guardian, bailee, trustee of an express trust, 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 that person's own name without
joining the party for whose benefit the action is brought; and when a
statute of the United States so provides, an action for the use or
benefit of another shall be brought in the name of the United States. 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 of commencement of the action
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.
(b) Capacity To Sue or Be Sued. The capacity of an individual, other
than one acting in a representative capacity, to sue or be sued shall be
determined by the law of the individual's domicile. The capacity of a
corporation to sue or be sued shall be determined by the law under which
it was organized. In all other cases capacity to sue or be sued shall be
determined by the law of the state in which the district court is held,
except (1) that a partnership or other unincorporated association, which
has no such capacity by the law of such state, may sue or be sued in its
common name for the purpose of enforcing for or against it a substantive
right existing under the Constitution or laws of the United States, and
(2) that the capacity of a receiver appointed by a court of the United
States to sue or be sued in a court of the United States is governed by
Title 28, U.S.C., Sections 754 and 959(a).
(c) Infants or Incompetent Persons. Whenever an infant or
incompetent person has a representative, such as a general guardian,
committee, conservator, or other like fiduciary, the representative may
sue or defend on behalf of the infant or incompetent person. An infant
or incompetent person who does not have a duly appointed representative
may sue by a next friend or by a guardian ad litem. The court shall
appoint a guardian ad litem for an infant or incompetent person not
otherwise represented in an action or shall make such other order as it
deems proper for the protection of the infant or incompetent person.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 25, 1988, eff. Aug. 1, 1988; Nov. 18, 1988.)
Rule 18
Joinder of Claims and Remedies__________________________________
(a) Joinder of Claims. A party asserting a claim to relief as an
original claim, counterclaim, cross-claim, or third-party claim, may
join, either as independent or as alternate claims, as many claims,
legal, equitable, or maritime, as the party has against an opposing
party.
(b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim is
one heretofore cognizable only after another claim has been prosecuted
to a conclusion, the two claims may be joined in a single action; but
the court shall grant relief in that action only in accordance with the
relative substantive rights of the parties. In particular, a plaintiff
may state a claim for money and a claim to have set aside a conveyance
fraudulent as to that plaintiff, without first having obtained a
judgment establishing the claim for money.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987.)
Rule 19
Joinder of Persons Needed for Just Adjudication_________________
(a) Persons To Be Joined if Feasible. A person who is subject to
service of process and whose joinder will not deprive the court of
jurisdiction over the subject matter of the action shall be joined as a
party in the action if (1) in the person's absence complete relief
cannot be accorded among those already parties, or (2) the person claims
an interest relating to the subject of the action and is so situated
that the disposition of the action in the person's absence may (i) as a
practical matter impair or impede the person's ability to protect that
interest or (ii) leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of the claimed interest. If the
person has not been so joined, the court shall order that the person be
made a party. If the person should join as a plaintiff but refuses to do
so, the person may be made a defendant, or, in a proper case, an
involuntary plaintiff. If the joined party objects to venue and joinder
of that party would render the venue of the action improper, that party
shall be dismissed from the action.
(b) Determination by Court Whenever Joinder Not Feasible. If a
person as described in subdivision (a)(1)-(2) hereof cannot be made a
party, the court shall determine whether in equity and good conscience
the action should proceed among the parties before it, or should be
dismissed, the absent person being thus regarded as indispensable. The
factors to be considered by the court include: first, to what extent a
judgment rendered in the person's absence might be prejudicial to the
person or those already parties; second, the extent to which, by
protective provisions in the judgment, by the shaping of relief, or
other measures, the prejudice can be lessened or avoided; third, whether
a judgment rendered in the person's absence will be adequate; fourth,
whether the plaintiff will have an adequate remedy if the action is
dismissed for nonjoinder.
(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim
for relief shall state the names, if known to the pleader, of any
persons as described in subdivision (a)(1)-(2) hereof who are not
joined, and the reasons why they are not joined.
(d) Exception of Class Actions. This rule is subject to the
provisions of Rule 23.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987.)
Rule 20
Permissive Joinder of Parties___________________________________
(a) Permissive Joinder. All persons may join in one action as
plaintiffs if they assert any right to relief jointly, severally, or in
the alternative in respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences and if any question
of law or fact common to all these persons will arise in the action. All
persons (and any vessel, cargo or other property subject to admiralty
process in rem) may be joined in one action as defendants if there is
asserted against them jointly, severally, or in the alternative, any
right to relief in respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences and if any question
of law or fact common to all defendants will arise in the action. A
plaintiff or defendant need not be interested in obtaining or defending
against all the relief demanded. Judgment may be given for one or more
of the plaintiffs according to their respective rights to relief, and
against one or more defendants according to their respective
liabilities.
(b) Separate Trials. The court may make such orders as will prevent
a party from being embarrassed, delayed, or put to expense by the
inclusion of a party against whom the party asserts no claim and who
asserts no claim against the party, and may order separate trials or
make other orders to prevent delay or prejudice.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987.)
Rule 21
Misjoinder and Non-Joinder of Parties___________________________
Misjoinder of parties is not ground for dismissal of an action.
Parties may be dropped or added by order of the court on motion of any
party or of its own initiative at any stage of the action and on such
terms as are just. Any claim against a party may be severed and
proceeded with separately.
Rule 22
Interpleader____________________________________________________
(1) Persons having claims against the plaintiff may be joined as
defendants and required to interplead when their claims are such that
the plaintiff is or may be exposed to double or multiple liability. It
is not ground for objection to the joinder that the claims of the
several claimants or the titles on which their claims depend do not have
a common origin or are not identical but are adverse to and independent
of one another, or that the plaintiff avers that the plaintiff is not
liable in whole or in part to any or all of the claimants. A defendant
exposed to similar liability may obtain such interpleader by way of
cross-claim or counterclaim. The provisions of this rule supplement and
do not in any way limit the joinder of parties permitted in Rule 20.
(2) The remedy herein provided is in addition to and in no way
supersedes or limits the remedy provided by Title 28, U.S.C.,
Sec. Sec. 1335, 1397, and 2361. Actions under those provisions shall be
conducted in accordance with these rules.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987, eff. Aug.
1, 1987.)
Rule 23
Class Actions___________________________________________________
(a) Prerequisites to a Class Action. One or more members of a class
may sue or be sued as representative parties on behalf of all only if
(1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common to the
class, (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect the interests
of the class.
(b) Class Actions Maintainable. An action may be maintained as a
class action if the prerequisites of subdivision (a) are satisfied, and
in addition:
(1) the prosecution of separate actions by or against
individual members of the class would create a risk of
(A) inconsistent or varying adjudications with
respect to individual members of the class which would
establish incompatible standards of conduct for the
party opposing the class, or
(B) adjudications with respect to individual members
of the class which would as a practical matter be
dispositive of the interests of the other members not
parties to the adjudications or substantially impair or
impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act
on grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding declaratory
relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common
to the members of the class predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for the fair and efficient
adjudication of the controversy. The matters pertinent to the
findings include: (A) the interest of members of the class in
individually controlling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation concerning
the controversy already commenced by or against members of the
class; (C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum; (D) the
difficulties likely to be encountered in the management of a
class action.
(c) Determining by Order Whether to Certify a Class Action;
Appointing Class Counsel; Notice and Membership in Class; Judgment;
Multiple Classes and Subclasses.
(1)(A) When a person sues or is sued as a representative of
a class, the court must--at an early practicable time--determine
by order whether to certify the action as a class action.
(B) An order certifying a class action must define the class
and the class claims, issues, or defenses, and must appoint
class counsel under Rule 23(g).
(C) An order under Rule 23(c)(1) may be altered or amended
before final judgment.
(2)(A) For any class certified under Rule 23(b)(1) or (2),
the court may direct appropriate notice to the class.
(B) For any class certified under Rule 23(b)(3), the court
must direct to class members the best notice practicable under
the circumstances, including individual notice to all members
who can be identified through reasonable effort. The notice must
concisely and clearly state in plain, easily understood
language:
the nature of the action,
the definition of the class certified,
the class claims, issues, or defenses,
that a class member may enter an
appearance through counsel if the member so desires,
that the court will exclude from the
class any member who requests exclusion, stating when
and how members may elect to be excluded, and
the binding effect of a class judgment on
class members under Rule 23(c)(3).
(3) The judgment in an action maintained as a class action
under subdivision (b)(1) or (b)(2), whether or not favorable to
the class, shall include and describe those whom the court finds
to be members of the class. The judgment in an action maintained
as a class action under subdivision (b)(3), whether or not
favorable to the class, shall include and specify or describe
those to whom the notice provided in subdivision (c)(2) was
directed, and who have not requested exclusion, and whom the
court finds to be members of the class.
(4) When appropriate (A) an action may be brought or
maintained as a class action with respect to particular issues,
or (B) a class may be divided into subclasses and each subclass
treated as a class, and the provisions of this rule shall then
be construed and applied accordingly.
(d) Orders in Conduct of Actions. In the conduct of actions to which
this rule applies, the court may make appropriate orders: (1)
determining the course of proceedings or prescribing measures to prevent
undue repetition or complication in the presentation of evidence or
argument; (2) requiring, for the protection of the members of the class
or otherwise for the fair conduct of the action, that notice be given in
such manner as the court may direct to some or all of the members of any
step in the action, or of the proposed extent of the judgment, or of the
opportunity of members to signify whether they consider the
representation fair and adequate, to intervene and present claims or
defenses, or otherwise to come into the action; (3) imposing conditions
on the representative parties or on intervenors; (4) requiring that the
pleadings be amended to eliminate therefrom allegations as to
representation of absent persons, and that the action proceed
accordingly; (5) dealing with similar procedural matters. The orders may
be combined with an order under Rule 16, and may be altered or amended
as may be desirable from time to time.
(e) Settlement, Voluntary Dismissal, or Compromise.
(1)(A) The court must approve any settlement, voluntary
dismissal, or compromise of the claims, issues, or defenses of a
certified class.
(B) The court must direct notice in a reasonable manner to
all class members who would be bound by a proposed settlement,
voluntary dismissal, or compromise.
(C) The court may approve a settlement, voluntary dismissal,
or compromise that would bind class members only after a hearing
and on finding that the settlement, voluntary dismissal, or
compromise is fair, reasonable, and adequate.
(2) The parties seeking approval of a settlement, voluntary
dismissal, or compromise under Rule 23(e)(1) must file a
statement identifying any agreement made in connection with the
proposed settlement, voluntary dismissal, or compromise.
(3) In an action previously certified as a class action
under Rule 23(b)(3), the court may refuse to approve a
settlement unless it affords a new opportunity to request
exclusion to individual class members who had an earlier
opportunity to request exclusion but did not do so.
(4)(A) Any class member may object to a proposed settlement,
voluntary dismissal, or compromise that requires court approval
under Rule 23(e)(1)(A).
(B) An objection made under Rule 23(e)(4)(A) may be
withdrawn only with the court's approval.
(f) Appeals. A court of appeals may in its discretion permit an
appeal from an order of a district court granting or denying class
action certification under this rule if application is made to it within
ten days after entry of the order. An appeal does not stay proceedings
in the district court unless the district judge or the court of appeals
so orders.
(g) Class Counsel.
(1) Appointing Class Counsel.
(A) Unless a statute provides otherwise, a court
that certifies a class must appoint class counsel.
(B) An attorney appointed to serve as class counsel
must fairly and adequately represent the interests of
the class.
(C) In appointing class counsel, the court
(i) must consider:
the work counsel has done in identifying or investigating
potential claims in the action,
counsel's experience in handling class actions, other complex
litigation, and claims of the type asserted in the action,
counsel's knowledge of the applicable law, and
the resources counsel will commit to representing the class;
(ii) may consider any other matter pertinent
to counsel's ability to fairly and adequately
represent the interests of the class;
(iii) may direct potential class counsel to
provide information on any subject pertinent to
the appointment and to propose terms for
attorney fees and nontaxable costs; and
(iv) may make further orders in connection
with the appointment.
(2) Appointment Procedure.
(A) The court may designate interim counsel to act
on behalf of the putative class before determining
whether to certify the action as a class action.
(B) When there is one applicant for appointment as
class counsel, the court may appoint that applicant only
if the applicant is adequate under Rule 23(g)(1)(B) and
(C). If more than one adequate applicant seeks
appointment as class counsel, the court must appoint the
applicant best able to represent the interests of the
class.
(C) The order appointing class counsel may include
provisions about the award of attorney fees or
nontaxable costs under Rule 23(h).
(h) Attorney Fees Award. In an action certified as a class action,
the court may award reasonable attorney fees and nontaxable costs
authorized by law or by agreement of the parties as follows:
(1) Motion for Award of Attorney Fees. A claim for an award
of attorney fees and nontaxable costs must be made by motion
under Rule 54(d)(2), subject to the provisions of this
subdivision, at a time set by the court. Notice of the motion
must be served on all parties and, for motions by class counsel,
directed to class members in a reasonable manner.
(2) Objections to Motion. A class member, or a party from
whom payment is sought, may object to the motion.
(3) Hearing and Findings. The court may hold a hearing and
must find the facts and state its conclusions of law on the
motion under Rule 52(a).
(4) Reference to Special Master or Magistrate Judge. The
court may refer issues related to the amount of the award to a
special master or to a magistrate judge as provided in Rule
54(d)(2)(D).
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 27, 2003, eff. Dec. 1,
2003.)
Rule 23.1
Derivative Actions by Shareholders______________________________
In a derivative action brought by one or more shareholders or
members to enforce a right of a corporation or of an unincorporated
association, the corporation or association having failed to enforce a
right which may properly be asserted by it, the complaint shall be
verified and shall allege (1) that the plaintiff was a shareholder or
member at the time of the transaction of which the plaintiff complains
or that the plaintiff's share or membership thereafter devolved on the
plaintiff by operation of law, and (2) that the action is not a
collusive one to confer jurisdiction on a court of the United States
which it would not otherwise have. The complaint shall also allege with
particularity the efforts, if any, made by the plaintiff to obtain the
action the plaintiff desires from the directors or comparable authority
and, if necessary, from the shareholders or members, and the reasons for
the plaintiff's failure to obtain the action or for not making the
effort. The derivative action may not be maintained if it appears that
the plaintiff does not fairly and adequately represent the interests of
the shareholders or members similarly situated in enforcing the right of
the corporation or association. The action shall not be dismissed or
compromised without the approval of the court, and notice of the
proposed dismissal or compromise shall be given to shareholders or
members in such manner as the court directs.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987, eff.
Aug. 1, 1987.)
Rule 23.2
Actions Relating to Unincorporated Associations_________________
An action brought by or against the members of an unincorporated
association as a class by naming certain members as representative
parties may be maintained only if it appears that the representative
parties will fairly and adequately protect the interests of the
association and its members. In the conduct of the action the court may
make appropriate orders corresponding with those described in Rule
23(d), and the procedure for dismissal or compromise of the action shall
correspond with that provided in Rule 23(e).
(As added Feb. 28, 1966, eff. July 1, 1966.)
Rule 24
Intervention____________________________________________________
(a) Intervention of Right. Upon timely application anyone shall be
permitted to intervene in an action: (1) when a statute of the United
States confers an unconditional right to intervene; or (2) when the
applicant claims an interest relating to the property or transaction
which is the subject of the action and the applicant is so situated that
the disposition of the action may as a practical matter impair or impede
the applicant's ability to protect that interest, unless the applicant's
interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be
permitted to intervene in an action: (1) when a statute of the United
States confers a conditional right to intervene; or (2) when an
applicant's claim or defense and the main action have a question of law
or fact in common. When a party to an action relies for ground of claim
or defense upon any statute or executive order administered by a federal
or state governmental officer or agency or upon any regulation, order,
requirement, or agreement issued or made pursuant to the statute or
executive order, the officer or agency upon timely application may be
permitted to intervene in the action. In exercising its discretion the
court shall consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties.
(c) Procedure. A person desiring to intervene shall serve a motion
to intervene upon the parties as provided in Rule 5. The motion shall
state the grounds therefor and shall be accompanied by a pleading
setting forth the claim or defense for which intervention is sought. The
same procedure shall be followed when a statute of the United States
gives a right to intervene.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1,
1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991;
Apr. 12, 2006, eff. Dec. 1, 2006.)
Rule 25
Substitution of Parties_________________________________________
(a) Death.
(1) If a party dies and the claim is not thereby
extinguished, the court may order substitution of the proper
parties. The motion for substitution may be made by any party or
by the successors or representatives of the deceased party and,
together with the notice of hearing, shall be served on the
parties as provided in Rule 5 and upon persons not parties in
the manner provided in Rule 4 for the service of a summons, and
may be served in any judicial district. Unless the motion for
substitution is made not later than 90 days after the death is
suggested upon the record by service of a statement of the fact
of the death as provided herein for the service of the motion,
the action shall be dismissed as to the deceased party.
(2) In the event of the death of one or more of the
plaintiffs or of one or more of the defendants in an action in
which the right sought to be enforced survives only to the
surviving plaintiffs or only against the surviving defendants,
the action does not abate. The death shall be suggested upon the
record and the action shall proceed in favor of or against the
surviving parties.
(b) Incompetency. If a party becomes incompetent, the court upon
motion served as provided in subdivision (a) of this rule may allow the
action to be continued by or against the party's representative.
(c) Transfer of Interest. In case of any transfer of interest, the
action may be continued by or against the original party, unless the
court upon motion directs the person to whom the interest is transferred
to be substituted in the action or joined with the original party.
Service of the motion shall be made as provided in subdivision (a) of
this rule.
(d) Public Officers; Death or Separation From Office.
(1) When a public officer is a party to an action in his
official capacity and during its pendency dies, resigns, or
otherwise ceases to hold office, the action does not abate and
the officer's successor is automatically substituted as a party.
Proceedings following the substitution shall be in the name of
the substituted party, but any misnomer not affecting the
substantial rights of the parties shall be disregarded. An order
of substitution may be entered at any time, but the omission to
enter such an order shall not affect the substitution.
(2) A public officer who sues or is sued in an official
capacity may be described as a party by the officer's official
title rather than by name; but the court may require the
officer's name to be added.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July
19, 1961; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1,
1987.)
V. DEPOSITIONS AND DISCOVERY
Rule 26
General Provisions Governing Discovery; Duty of Disclosure______
(a) Required Disclosures; Methods to Discover Additional Matter.
(1) Initial Disclosures. Except in categories of proceedings
specified in Rule 26(a)(1)(E), or to the extent otherwise
stipulated or directed by order, a party must, without awaiting
a discovery request, provide to other parties:
(A) the name and, if known, the address and
telephone number of each individual likely to have
discoverable information that the disclosing party may
use to support its claims or defenses, unless solely for
impeachment, identifying the subjects of the
information;
(B) a copy of, or a description by category and
location of, all documents, electronically stored
information, and tangible things that are in the
possession, custody, or control of the party and that
the disclosing party may use to support its claims or
defenses, unless solely for impeachment;
(C) a computation of any category of damages claimed
by the disclosing party, making available for inspection
and copying as under Rule 34 the documents or other
evidentiary material, not privileged or protected from
disclosure, on which such computation is based,
including materials bearing on the nature and extent of
injuries suffered; and
(D) for inspection and copying as under Rule 34 any
insurance agreement under which any person carrying on
an insurance business may be liable to satisfy part or
all of a judgment which may be entered in the action or
to indemnify or reimburse for payments made to satisfy
the judgment.
(E) The following categories of proceedings are
exempt from initial disclosure under Rule 26(a)(1):
(i) an action for review on an
administrative record;
(ii) a forfeiture action in rem arising from
a federal statute;
(iii) a petition for habeas corpus or other
proceeding to challenge a criminal conviction or
sentence;
(iv) an action brought without counsel by a
person in custody of the United States, a state,
or a state subdivision;
(v) an action to enforce or quash an
administrative summons or subpoena;
(vi) an action by the United States to
recover benefit payments;
(vii) an action by the United States to
collect on a student loan guaranteed by the
United States;
(viii) a proceeding ancillary to proceedings
in other courts; and
(ix) an action to enforce an arbitration
award.
These disclosures must be made at or within 14 days after the
Rule 26(f) conference unless a different time is set by
stipulation or court order, or unless a party objects during the
conference that initial disclosures are not appropriate in the
circumstances of the action and states the objection in the Rule
26(f) discovery plan. In ruling on the objection, the court must
determine what disclosures--if any--are to be made, and set the
time for disclosure. Any party first served or otherwise joined
after the Rule 26(f) conference must make these disclosures
within 30 days after being served or joined unless a different
time is set by stipulation or court order. A party must make its
initial disclosures based on the information then reasonably
available to it and is not excused from making its disclosures
because it has not fully completed its investigation of the case
or because it challenges the sufficiency of another party's
disclosures or because another party has not made its
disclosures.
(2) Disclosure of Expert Testimony.
(A) In addition to the disclosures required by
paragraph (1), a party shall disclose to other parties
the identity of any person who may be used at trial to
present evidence under Rules 702, 703, or 705 of the
Federal Rules of Evidence.
(B) Except as otherwise stipulated or directed by
the court, this disclosure shall, with respect to a
witness who is retained or specially employed to provide
expert testimony in the case or whose duties as an
employee of the party regularly involve giving expert
testimony, be accompanied by a written report prepared
and signed by the witness. The report shall contain a
complete statement of all opinions to be expressed and
the basis and reasons therefor; the data or other
information considered by the witness in forming the
opinions; any exhibits to be used as a summary of or
support for the opinions; the qualifications of the
witness, including a list of all publications authored
by the witness within the preceding ten years; the
compensation to be paid for the study and testimony; and
a listing of any other cases in which the witness has
testified as an expert at trial or by deposition within
the preceding four years.
(C) These disclosures shall be made at the times and
in the sequence directed by the court. In the absence of
other directions from the court or stipulation by the
parties, the disclosures shall be made at least 90 days
before the trial date or the date the case is to be
ready for trial or, if the evidence is intended solely
to contradict or rebut evidence on the same subject
matter identified by another party under paragraph
(2)(B), within 30 days after the disclosure made by the
other party. The parties shall supplement these
disclosures when required under subdivision (e)(1).
(3) Pretrial Disclosures. In addition to the disclosures
required by Rule 26(a)(1) and (2), a party must provide to other
parties and promptly file with the court the following
information regarding the evidence that it may present at trial
other than solely for impeachment:
(A) the name and, if not previously provided, the
address and telephone number of each witness, separately
identifying those whom the party expects to present and
those whom the party may call if the need arises;
(B) the designation of those witnesses whose
testimony is expected to be presented by means of a
deposition and, if not taken stenographically, a
transcript of the pertinent portions of the deposition
testimony; and
(C) an appropriate identification of each document
or other exhibit, including summaries of other evidence,
separately identifying those which the party expects to
offer and those which the party may offer if the need
arises.
Unless otherwise directed by the court, these disclosures must
be made at least 30 days before trial. Within 14 days
thereafter, unless a different time is specified by the court, a
party may serve and promptly file a list disclosing (i) any
objections to the use under Rule 32(a) of a deposition
designated by another party under Rule 26(a)(3)(B), and (ii) any
objection, together with the grounds therefor, that may be made
to the admissibility of materials identified under Rule
26(a)(3)(C). Objections not so disclosed, other than objections
under Rules 402 and 403 of the Federal Rules of Evidence, are
waived unless excused by the court for good cause.
(4) Form of Disclosures. Unless the court orders otherwise,
all disclosures under Rules 26(a)(1) through (3) must be made in
writing, signed, and served.
(5) Methods to Discover Additional Matter. Parties may
obtain discovery by one or more of the following methods:
depositions upon oral examination or written questions; written
interrogatories; production of documents or things or permission
to enter upon land or other property under Rule 34 or
45(a)(1)(C), for inspection and other purposes; physical and
mental examinations; and requests for admission.
(b) Discovery Scope and Limits. Unless otherwise limited by order of
the court in accordance with these rules, the scope of discovery is as
follows:
(1) In General. Parties may obtain discovery regarding any
matter, not privileged, that is relevant to the claim or defense
of any party, including the existence, description, nature,
custody, condition, and location of any books, documents, or
other tangible things and the identity and location of persons
having knowledge of any discoverable matter. For good cause, the
court may order discovery of any matter relevant to the subject
matter involved in the action. Relevant information need not be
admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence. All
discovery is subject to the limitations imposed by Rule
26(b)(2)(i), (ii), and (iii).
(2) Limitations.
(A) By order, the court may alter the limits in
these rules on the number of depositions and
interrogatories or the length of depositions under Rule
30. By order or local rule, the court may also limit the
number of requests under Rule 36.
(B) A party need not provide discovery of
electronically stored information from sources that the
party identifies as not reasonably accessible because of
undue burden or cost. On motion to compel discovery or
for a protective order, the party from whom discovery is
sought must show that the information is not reasonably
accessible because of undue burden or cost. If that
showing is made, the court may nonetheless order
discovery from such sources if the requesting party
shows good cause, considering the limitations of Rule
26(b)(2)(C). The court may specify conditions for the
discovery.
(C) The frequency or extent of use of the discovery
methods otherwise permitted under these rules and by any
local rule shall be limited by the court if it
determines that: (i) the discovery sought is
unreasonably cumulative or duplicative, or is obtainable
from some other source that is more convenient, less
burdensome, or less expensive; (ii) the party seeking
discovery has had ample opportunity by discovery in the
action to obtain the information sought; or (iii) the
burden or expense of the proposed discovery outweighs
its likely benefit, taking into account the needs of the
case, the amount in controversy, the parties' resources,
the importance of the issues at stake in the litigation,
and the importance of the proposed discovery in
resolving the issues. The court may act upon its own
initiative after reasonable notice or pursuant to a
motion under Rule 26(c).
(3) Trial Preparation: Materials. Subject to the provisions
of subdivision (b)(4) of this rule, a party may obtain discovery
of documents and tangible things otherwise discoverable under
subdivision (b)(1) of this rule and prepared in anticipation of
litigation or for trial by or for another party or by or for
that other party's representative (including the other party's
attorney, consultant, surety, indemnitor, insurer, or agent)
only upon a showing that the party seeking discovery has
substantial need of the materials in the preparation of the
party's case and that the party is unable without undue hardship
to obtain the substantial equivalent of the materials by other
means. In ordering discovery of such materials when the required
showing has been made, the court shall protect against
disclosure of the mental impressions, conclusions, opinions, or
legal theories of an attorney or other representative of a party
concerning the litigation.
A party may obtain without the required showing a statement
concerning the action or its subject matter previously made by
that party. Upon request, a person not a party may obtain
without the required showing a statement concerning the action
or its subject matter previously made by that person. If the
request is refused, the person may move for a court order. The
provisions of Rule 37(a)(4) apply to the award of expenses
incurred in relation to the motion. For purposes of this
paragraph, a statement previously made is (A) a written
statement signed or otherwise adopted or approved by the person
making it, or (B) a stenographic, mechanical, electrical, or
other recording, or a transcription thereof, which is a
substantially verbatim recital of an oral statement by the
person making it and contemporaneously recorded.
(4) Trial Preparation: Experts.
(A) A party may depose any person who has been
identified as an expert whose opinions may be presented
at trial. If a report from the expert is required under
subdivision (a)(2)(B), the deposition shall not be
conducted until after the report is provided.
(B) A party may, through interrogatories or by
deposition, discover facts known or opinions held by an
expert who has been retained or specially employed by
another party in anticipation of litigation or
preparation for trial and who is not expected to be
called as a witness at trial only as provided in Rule
35(b) or upon a showing of exceptional circumstances
under which it is impracticable for the party seeking
discovery to obtain facts or opinions on the same
subject by other means.
(C) Unless manifest injustice would result, (i) the
court shall require that the party seeking discovery pay
the expert a reasonable fee for time spent in responding
to discovery under this subdivision; and (ii) with
respect to discovery obtained under subdivision
(b)(4)(B) of this rule the court shall require the party
seeking discovery to pay the other party a fair portion
of the fees and expenses reasonably incurred by the
latter party in obtaining facts and opinions from the
expert.
(5) Claims of Privilege or Protection of Trial-Preparation
Materials.
(A) Information Withheld. When a party withholds
information otherwise discoverable under these rules by
claiming that it is privileged or subject to protection
as trial-preparation material, the party shall make the
claim expressly and shall describe the nature of the
documents, communications, or things not produced or
disclosed in a manner that, without revealing
information itself privileged or protected, will enable
other parties to assess the applicability of the
privilege or protection.
(B) Information Produced. If information is produced
in discovery that is subject to a claim of privilege or
of protection as trial-preparation material, the party
making the claim may notify any party that received the
information of the claim and the basis for it. After
being notified, a party must promptly return, sequester,
or destroy the specified information and any copies it
has and may not use or disclose the information until
the claim is resolved. A receiving party may promptly
present the information to the court under seal for a
determination of the claim. If the receiving party
disclosed the information before being notified, it must
take reasonable steps to retrieve it. The producing
party must preserve the information until the claim is
resolved.
(c) Protective Orders. Upon motion by a party or by the person from
whom discovery is sought, accompanied by a certification that the movant
has in good faith conferred or attempted to confer with other affected
parties in an effort to resolve the dispute without court action, and
for good cause shown, the court in which the action is pending or
alternatively, on matters relating to a deposition, the court in the
district where the deposition is to be taken may make any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or
more of the following:
(1) that the disclosure or discovery not be had;
(2) that the disclosure or discovery may be had only on
specified terms and conditions, including a designation of the
time or place;
(3) that the discovery may be had only by a method of
discovery other than that selected by the party seeking
discovery;
(4) that certain matters not be inquired into, or that the
scope of the disclosure or discovery be limited to certain
matters;
(5) that discovery be conducted with no one present except
persons designated by the court;
(6) that a deposition, after being sealed, be opened only by
order of the court;
(7) that a trade secret or other confidential research,
development, or commercial information not be revealed or be
revealed only in a designated way; and
(8) that the parties simultaneously file specified documents
or information enclosed in sealed envelopes to be opened as
directed by the court.
If the motion for a protective order is denied in whole or in part, the
court may, on such terms and conditions as are just, order that any
party or other person provide or permit discovery. The provisions of
Rule 37(a)(4) apply to the award of expenses incurred in relation to the
motion.
(d) Timing and Sequence of Discovery. Except in categories of
proceedings exempted from initial disclosure under Rule 26(a)(1)(E), or
when authorized under these rules or by order or agreement of the
parties, a party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f). Unless the court upon
motion, for the convenience of parties and witnesses and in the
interests of justice, orders otherwise, methods of discovery may be used
in any sequence, and the fact that a party is conducting discovery,
whether by deposition or otherwise, does not operate to delay any other
party's discovery.
(e) Supplementation of Disclosures and Responses. A party who has
made a disclosure under subdivision (a) or responded to a request for
discovery with a disclosure or response is under a duty to supplement or
correct the disclosure or response to include information thereafter
acquired if ordered by the court or in the following circumstances:
(1) A party is under a duty to supplement at appropriate
intervals its disclosures under subdivision (a) if the party
learns that in some material respect the information disclosed
is incomplete or incorrect and if the additional or corrective
information has not otherwise been made known to the other
parties during the discovery process or in writing. With respect
to testimony of an expert from whom a report is required under
subdivision (a)(2)(B) the duty extends both to information
contained in the report and to information provided through a
deposition of the expert, and any additions or other changes to
this information shall be disclosed by the time the party's
disclosures under Rule 26(a)(3) are due.
(2) A party is under a duty seasonably to amend a prior
response to an interrogatory, request for production, or request
for admission if the party learns that the response is in some
material respect incomplete or incorrect and if the additional
or corrective information has not otherwise been made known to
the other parties during the discovery process or in writing.
(f) Conference of Parties; Planning for Discovery. Except in
categories of proceedings exempted from initial disclosure under Rule
26(a)(1)(E) or when otherwise ordered, the parties must, as soon as
practicable and in any event at least 21 days before a scheduling
conference is held or a scheduling order is due under Rule 16(b), confer
to consider the nature and basis of their claims and defenses and the
possibilities for a prompt settlement or resolution of the case, to make
or arrange for the disclosures required by Rule 26(a)(1), to discuss any
issues relating to preserving discoverable information, and to develop a
proposed discovery plan that indicates the parties' views and proposals
concerning:
(1) what changes should be made in the timing, form, or
requirement for disclosures under Rule 26(a), including a
statement as to when disclosures under Rule 26(a)(1) were made
or will be made;
(2) the subjects on which discovery may be needed, when
discovery should be completed, and whether discovery should be
conducted in phases or be limited to or focused upon particular
issues;
(3) any issues relating to disclosure or discovery of
electronically stored information, including the form or forms
in which it should be produced;
(4) any issues relating to claims of privilege or of
protection as trial-preparation material, including--if the
parties agree on a procedure to assert such claims after
production--whether to ask the court to include their agreement
in an order;
(5) what changes should be made in the limitations on
discovery imposed under these rules or by local rule, and what
other limitations should be imposed; and
(6) any other orders that should be entered by the court
under Rule 26(c) or under Rule 16(b) and (c).
The attorneys of record and all unrepresented parties that have appeared
in the case are jointly responsible for arranging the conference, for
attempting in good faith to agree on the proposed discovery plan, and
for submitting to the court within 14 days after the conference a
written report outlining the plan. A court may order that the parties or
attorneys attend the conference in person. If necessary to comply with
its expedited schedule for Rule 16(b) conferences, a court may by local
rule (i) require that the conference between the parties occur fewer
than 21 days before the scheduling conference is held or a scheduling
order is due under Rule 16(b), and (ii) require that the written report
outlining the discovery plan be filed fewer than 14 days after the
conference between the parties, or excuse the parties from submitting a
written report and permit them to report orally on their discovery plan
at the Rule 16(b) conference.
(g) Signing of Disclosures, Discovery Requests, Responses, and
Objections.
(1) Every disclosure made pursuant to subdivision (a)(1) or
subdivision (a)(3) shall be signed by at least one attorney of
record in the attorney's individual name, whose address shall be
stated. An unrepresented party shall sign the disclosure and
state the party's address. The signature of the attorney or
party constitutes a certification that to the best of the
signer's knowledge, information, and belief, formed after a
reasonable inquiry, the disclosure is complete and correct as of
the time it is made.
(2) Every discovery request, response, or objection made by
a party represented by an attorney shall be signed by at least
one attorney of record in the attorney's individual name, whose
address shall be stated. An unrepresented party shall sign the
request, response, or objection and state the party's address.
The signature of the attorney or party constitutes a
certification that to the best of the signer's knowledge,
information, and belief, formed after a reasonable inquiry, the
request, response, or objection is:
(A) consistent with these rules and warranted by
existing law or a good faith argument for the extension,
modification, or reversal of existing law;
(B) not interposed for any improper purpose, such as
to harass or to cause unnecessary delay or needless
increase in the cost of litigation; and
(C) not unreasonable or unduly burdensome or
expensive, given the needs of the case, the discovery
already had in the case, the amount in controversy, and
the importance of the issues at stake in the litigation.
If a request, response, or objection is not signed, it shall be
stricken unless it is signed promptly after the omission is
called to the attention of the party making the request,
response, or objection, and a party shall not be obligated to
take any action with respect to it until it is signed.
(3) If without substantial justification a certification is
made in violation of the rule, the court, upon motion or upon
its own initiative, shall impose upon the person who made the
certification, the party on whose behalf the disclosure,
request, response, or objection is made, or both, an appropriate
sanction, which may include an order to pay the amount of the
reasonable expenses incurred because of the violation, including
a reasonable attorney's fee.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 30, 1970, eff. July 1,
1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 28, 1983, eff. Aug. 1,
1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993;
Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006.)
Rule 27
Depositions Before Action or Pending Appeal_____________________
(a) Before Action.
(1) Petition. A person who desires to perpetuate testimony
regarding any matter that may be cognizable in any court of the
United States may file a verified petition in the United States
district court in the district of the residence of any expected
adverse party. The petition shall be entitled in the name of the
petitioner and shall show: 1, that the petitioner expects to be
a party to an action cognizable in a court of the United States
but is presently unable to bring it or cause it to be brought,
2, the subject matter of the expected action and the
petitioner's interest therein, 3, the facts which the petitioner
desires to establish by the proposed testimony and the reasons
for desiring to perpetuate it, 4, the names or a description of
the persons the petitioner expects will be adverse parties and
their addresses so far as known, and 5, the names and addresses
of the persons to be examined and the substance of the testimony
which the petitioner expects to elicit from each, and shall ask
for an order authorizing the petitioner to take the depositions
of the persons to be examined named in the petition, for the
purpose of perpetuating their testimony.
(2) Notice and Service. At least 20 days before the hearing
date, the petitioner must serve each expected adverse party with
a copy of the petition and a notice stating the time and place
of the hearing. The notice may be served either inside or
outside the district or state in the manner provided in Rule 4.
If that service cannot be made with due diligence on an expected
adverse party, the court may order service by publication or
otherwise. The court must appoint an attorney to represent
persons not served in the manner provided by Rule 4 and to
cross-examine the deponent if an unserved person is not
otherwise represented. Rule 17(c) applies if any expected
adverse party is a minor or is incompetent.
(3) Order and Examination. If the court is satisfied that
the perpetuation of the testimony may prevent a failure or delay
of justice, it shall make an order designating or describing the
persons whose depositions may be taken and specifying the
subject matter of the examination and whether the depositions
shall be taken upon oral examination or written interrogatories.
The depositions may then be taken in accordance with these
rules; and the court may make orders of the character provided
for by Rules 34 and 35. For the purpose of applying these rules
to depositions for perpetuating testimony, each reference
therein to the court in which the action is pending shall be
deemed to refer to the court in which the petition for such
deposition was filed.
(4) Use of Deposition. If a deposition to perpetuate
testimony is taken under these rules or if, although not so
taken, it would be admissible in evidence in the courts of the
state in which it is taken, it may be used in any action
involving the same subject matter subsequently brought in a
United States district court, in accordance with the provisions
of Rule 32(a).
(b) Pending Appeal. If an appeal has been taken from a judgment of a
district court or before the taking of an appeal if the time therefor
has not expired, the district court in which the judgment was rendered
may allow the taking of the depositions of witnesses to perpetuate their
testimony for use in the event of further proceedings in the district
court. In such case the party who desires to perpetuate the testimony
may make a motion in the district court for leave to take the
depositions, upon the same notice and service thereof as if the action
was pending in the district court. The motion shall show (1) the names
and addresses of persons to be examined and the substance of the
testimony which the party expects to elicit from each; (2) the reasons
for perpetuating their testimony. If the court finds that the
perpetuation of the testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the depositions to be taken and
may make orders of the character provided for by Rules 34 and 35, and
thereupon the depositions may be taken and used in the same manner and
under the same conditions as are prescribed in these rules for
depositions taken in actions pending in the district court.
(c) Perpetuation by Action. This rule does not limit the power of a
court to entertain an action to perpetuate testimony.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Mar. 1, 1971, eff. July 1, 1971; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 25, 2005, eff. Dec. 1, 2005.)
Rule 28
Persons Before Whom Depositions May Be Taken____________________
(a) Within the United States. Within the United States or within a
territory or insular possession subject to the jurisdiction of the
United States, depositions shall be taken before an officer authorized
to administer oaths by the laws of the United States or of the place
where the examination is held, or before a person appointed by the court
in which the action is pending. A person so appointed has power to
administer oaths and take testimony. The term officer as used in Rules
30, 31 and 32 includes a person appointed by the court or designated by
the parties under Rule 29.
(b) In Foreign Countries. Depositions may be taken in a foreign
country (1) pursuant to any applicable treaty or convention, or (2)
pursuant to a letter of request (whether or not captioned a letter
rogatory), or (3) on notice before a person authorized to administer
oaths in the place where the examination is held, either by the law
thereof or by the law of the United States, or (4) before a person
commissioned by the court, and a person so commissioned shall have the
power by virtue of the commission to administer any necessary oath and
take testimony. A commission or a letter of request shall be issued on
application and notice and on terms that are just and appropriate. It is
not requisite to the issuance of a commission or a letter of request
that the taking of the deposition in any other manner is impracticable
or inconvenient; and both a commission and a letter of request may be
issued in proper cases. A notice or commission may designate the person
before whom the deposition is to be taken either by name or descriptive
title. A letter of request may be addressed ``To the Appropriate
Authority in [here name the country].'' When a letter of request or any
other device is used pursuant to any applicable treaty or convention, it
shall be captioned in the form prescribed by that treaty or convention.
Evidence obtained in response to a letter of request need not be
excluded merely because it is not a verbatim transcript, because the
testimony was not taken under oath, or because of any similar departure
from the requirements for depositions taken within the United States
under these rules.
(c) Disqualification for Interest. No deposition shall be taken
before a person who is a relative or employee or attorney or counsel of
any of the parties, or is a relative or employee of such attorney or
counsel, or is financially interested in the action.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993.)
Rule 29
Stipulations Regarding Discovery Procedure______________________
Unless otherwise directed by the court, the parties may by written
stipulation (1) provide that depositions may be taken before any person,
at any time or place, upon any notice, and in any manner and when so
taken may be used like other depositions, and (2) modify other
procedures governing or limitations placed upon discovery, except that
stipulations extending the time provided in Rules 33, 34, and 36 for
responses to discovery may, if they would interfere with any time set
for completion of discovery, for hearing of a motion, or for trial, be
made only with the approval of the court.
(As amended Mar. 30, 1970, eff. July 1, 1970; Apr. 22, 1993, eff. Dec.
1, 1993.)
Rule 30
Depositions Upon Oral Examination_______________________________
(a) When Depositions May Be Taken; When Leave Required.
(1) A party may take the testimony of any person, including
a party, by deposition upon oral examination without leave of
court except as provided in paragraph (2). The attendance of
witnesses may be compelled by subpoena as provided in Rule 45.
(2) A party must obtain leave of court, which shall be
granted to the extent consistent with the principles stated in
Rule 26(b)(2), if the person to be examined is confined in
prison or if, without the written stipulation of the parties,
(A) a proposed deposition would result in more than
ten depositions being taken under this rule or Rule 31
by the plaintiffs, or by the defendants, or by third-
party defendants;
(B) the person to be examined already has been
deposed in the case; or
(C) a party seeks to take a deposition before the
time specified in Rule 26(d) unless the notice contains
a certification, with supporting facts, that the person
to be examined is expected to leave the United States
and be unavailable for examination in this country
unless deposed before that time.
(b) Notice of Examination: General Requirements; Method of
Recording; Production of Documents and Things; Deposition of
Organization; Deposition by Telephone.
(1) A party desiring to take the deposition of any person
upon oral examination shall give reasonable notice in writing to
every other party to the action. The notice shall state the time
and place for taking the deposition and the name and address of
each person to be examined, if known, and, if the name is not
known, a general description sufficient to identify the person
or the particular class or group to which the person belongs. If
a subpoena duces tecum is to be served on the person to be
examined, the designation of the materials to be produced as set
forth in the subpoena shall be attached to, or included in, the
notice.
(2) The party taking the deposition shall state in the
notice the method by which the testimony shall be recorded.
Unless the court orders otherwise, it may be recorded by sound,
sound-and-visual, or stenographic means, and the party taking
the deposition shall bear the cost of the recording. Any party
may arrange for a transcription to be made from the recording of
a deposition taken by nonstenographic means.
(3) With prior notice to the deponent and other parties, any
party may designate another method to record the deponent's
testimony in addition to the method specified by the person
taking the deposition. The additional record or transcript shall
be made at that party's expense unless the court otherwise
orders.
(4) Unless otherwise agreed by the parties, a deposition
shall be conducted before an officer appointed or designated
under Rule 28 and shall begin with a statement on the record by
the officer that includes (A) the officer's name and business
address; (B) the date, time, and place of the deposition; (C)
the name of the deponent; (D) the administration of the oath or
affirmation to the deponent; and (E) an identification of all
persons present. If the deposition is recorded other than
stenographically, the officer shall repeat items (A) through (C)
at the beginning of each unit of recorded tape or other
recording medium. The appearance or demeanor of deponents or
attorneys shall not be distorted through camera or sound-
recording techniques. At the end of the deposition, the officer
shall state on the record that the deposition is complete and
shall set forth any stipulations made by counsel concerning the
custody of the transcript or recording and the exhibits, or
concerning other pertinent matters.
(5) The notice to a party deponent may be accompanied by a
request made in compliance with Rule 34 for the production of
documents and tangible things at the taking of the deposition.
The procedure of Rule 34 shall apply to the request.
(6) A party may in the party's notice and in a subpoena name
as the deponent a public or private corporation or a partnership
or association or governmental agency and describe with
reasonable particularity the matters on which examination is
requested. In that event, the organization so named shall
designate one or more officers, directors, or managing agents,
or other persons who consent to testify on its behalf, and may
set forth, for each person designated, the matters on which the
person will testify. A subpoena shall advise a non-party
organization of its duty to make such a designation. The persons
so designated shall testify as to matters known or reasonably
available to the organization. This subdivision (b)(6) does not
preclude taking a deposition by any other procedure authorized
in these rules.
(7) The parties may stipulate in writing or the court may
upon motion order that a deposition be taken by telephone or
other remote electronic means. For the purposes of this rule and
Rules 28(a), 37(a)(1), and 37(b)(1), a deposition taken by such
means is taken in the district and at the place where the
deponent is to answer questions.
(c) Examination and Cross-Examination; Record of Examination; Oath;
Objections. Examination and cross-examination of witnesses may proceed
as permitted at the trial under the provisions of the Federal Rules of
Evidence except Rules 103 and 615. The officer before whom the
deposition is to be taken shall put the witness on oath or affirmation
and shall personally, or by someone acting under the officer's direction
and in the officer's presence, record the testimony of the witness. The
testimony shall be taken stenographically or recorded by any other
method authorized by subdivision (b)(2) of this rule. All objections
made at the time of the examination to the qualifications of the officer
taking the deposition, to the manner of taking it, to the evidence
presented, to the conduct of any party, or to any other aspect of the
proceedings shall be noted by the officer upon the record of the
deposition; but the examination shall proceed, with the testimony being
taken subject to the objections. In lieu of participating in the oral
examination, parties may serve written questions in a sealed envelope on
the party taking the deposition and the party taking the deposition
shall transmit them to the officer, who shall propound them to the
witness and record the answers verbatim.
(d) Schedule and Duration; Motion to Terminate or Limit Examination.
(1) Any objection during a deposition must be stated
concisely and in a non-argumentative and non-suggestive manner.
A person may instruct a deponent not to answer only when
necessary to preserve a privilege, to enforce a limitation
directed by the court, or to present a motion under Rule
30(d)(4).
(2) Unless otherwise authorized by the court or stipulated
by the parties, a deposition is limited to one day of seven
hours. The court must allow additional time consistent with Rule
26(b)(2) if needed for a fair examination of the deponent or if
the deponent or another person, or other circumstance, impedes
or delays the examination.
(3) If the court finds that any impediment, delay, or other
conduct has frustrated the fair examination of the deponent, it
may impose upon the persons responsible an appropriate sanction,
including the reasonable costs and attorney's fees incurred by
any parties as a result thereof.
(4) At any time during a deposition, on motion of a party or
of the deponent and upon a showing that the examination is being
conducted in bad faith or in such manner as unreasonably to
annoy, embarrass, or oppress the deponent or party, the court in
which the action is pending or the court in the district where
the deposition is being taken may order the officer conducting
the examination to cease forthwith from taking the deposition,
or may limit the scope and manner of the taking of the
deposition as provided in Rule 26(c). If the order made
terminates the examination, it may be resumed thereafter only
upon the order of the court in which the action is pending. Upon
demand of the objecting party or deponent, the taking of the
deposition must be suspended for the time necessary to make a
motion for an order. The provisions of Rule 37(a)(4) apply to
the award of expenses incurred in relation to the motion.
(e) Review by Witness; Changes; Signing. If requested by the
deponent or a party before completion of the deposition, the deponent
shall have 30 days after being notified by the officer that the
transcript or recording is available in which to review the transcript
or recording and, if there are changes in form or substance, to sign a
statement reciting such changes and the reasons given by the deponent
for making them. The officer shall indicate in the certificate
prescribed by subdivision (f)(1) whether any review was requested and,
if so, shall append any changes made by the deponent during the period
allowed.
(f) Certification and Delivery by Officer; Exhibits; Copies.
(1) The officer must certify that the witness was duly sworn
by the officer and that the deposition is a true record of the
testimony given by the witness. This certificate must be in
writing and accompany the record of the deposition. Unless
otherwise ordered by the court, the officer must securely seal
the deposition in an envelope or package indorsed with the title
of the action and marked ``Deposition of [here insert name of
witness]'' and must promptly send it to the attorney who
arranged for the transcript or recording, who must store it
under conditions that will protect it against loss, destruction,
tampering, or deterioration. Documents and things produced for
inspection during the examination of the witness, must, upon the
request of a party, be marked for identification and annexed to
the deposition and may be inspected and copied by any party,
except that if the person producing the materials desires to
retain them the person may (A) offer copies to be marked for
identification and annexed to the deposition and to serve
thereafter as originals if the person affords to all parties
fair opportunity to verify the copies by comparison with the
originals, or (B) offer the originals to be marked for
identification, after giving to each party an opportunity to
inspect and copy them, in which event the materials may then be
used in the same manner as if annexed to the deposition. Any
party may move for an order that the original be annexed to and
returned with the deposition to the court, pending final
disposition of the case.
(2) Unless otherwise ordered by the court or agreed by the
parties, the officer shall retain stenographic notes of any
deposition taken stenographically or a copy of the recording of
any deposition taken by another method. Upon payment of
reasonable charges therefor, the officer shall furnish a copy of
the transcript or other recording of the deposition to any party
or to the deponent.
(3) The party taking the deposition shall give prompt notice
of its filing to all other parties.
(g) Failure To Attend or To Serve Subpoena; Expenses.
(1) If the party giving the notice of the taking of a
deposition fails to attend and proceed therewith and another
party attends in person or by attorney pursuant to the notice,
the court may order the party giving the notice to pay to such
other party the reasonable expenses incurred by that party and
that party's attorney in attending, including reasonable
attorney's fees.
(2) If the party giving the notice of the taking of a
deposition of a witness fails to serve a subpoena upon the
witness and the witness because of such failure does not attend,
and if another party attends in person or by attorney because
that party expects the deposition of that witness to be taken,
the court may order the party giving the notice to pay to such
other party the reasonable expenses incurred by that party and
that party's attorney in attending, including reasonable
attorney's fees.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff. July
1, 1970; Mar. 1, 1971, eff. July 1, 1971; Nov. 20, 1972, eff. July 1,
1975; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000.)
Rule 31
Depositions Upon Written Questions______________________________
(a) Serving Questions; Notice.
(1) A party may take the testimony of any person, including
a party, by deposition upon written questions without leave of
court except as provided in paragraph (2). The attendance of
witnesses may be compelled by the use of subpoena as provided in
Rule 45.
(2) A party must obtain leave of court, which shall be
granted to the extent consistent with the principles stated in
Rule 26(b)(2), if the person to be examined is confined in
prison or if, without the written stipulation of the parties,
(A) a proposed deposition would result in more than
ten depositions being taken under this rule or Rule 30
by the plaintiffs, or by the defendants, or by third-
party defendants;
(B) the person to be examined has already been
deposed in the case; or
(C) a party seeks to take a deposition before the
time specified in Rule 26(d).
(3) A party desiring to take a deposition upon written
questions shall serve them upon every other party with a notice
stating (1) the name and address of the person who is to answer
them, if known, and if the name is not known, a general
description sufficient to identify the person or the particular
class or group to which the person belongs, and (2) the name or
descriptive title and address of the officer before whom the
deposition is to be taken. A deposition upon written questions
may be taken of a public or private corporation or a partnership
or association or governmental agency in accordance with the
provisions of Rule 30(b)(6).
(4) Within 14 days after the notice and written questions
are served, a party may serve cross questions upon all other
parties. Within 7 days after being served with cross questions,
a party may serve redirect questions upon all other parties.
Within 7 days after being served with redirect questions, a
party may serve recross questions upon all other parties. The
court may for cause shown enlarge or shorten the time.
(b) Officer To Take Responses and Prepare Record. A copy of the
notice and copies of all questions served shall be delivered by the
party taking the deposition to the officer designated in the notice, who
shall proceed promptly, in the manner provided by Rule 30(c), (e), and
(f), to take the testimony of the witness in response to the questions
and to prepare, certify, and file or mail the deposition, attaching
thereto the copy of the notice and the questions received by the
officer.
(c) Notice of Filing. When the deposition is filed the party taking
it shall promptly give notice thereof to all other parties.
(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993.)
Rule 32
Use of Depositions in Court Proceedings_________________________
(a) Use of Depositions. At the trial or upon the hearing of a motion
or an interlocutory proceeding, any part or all of a deposition, so far
as admissible under the rules of evidence applied as though the witness
were then present and testifying, may be used against any party who was
present or represented at the taking of the deposition or who had
reasonable notice thereof, in accordance with any of the following
provisions:
(1) Any deposition may be used by any party for the purpose
of contradicting or impeaching the testimony of deponent as a
witness, or for any other purpose permitted by the Federal Rules
of Evidence.
(2) The deposition of a party or of anyone who at the time
of taking the deposition was an officer, director, or managing
agent, or a person designated under Rule 30(b)(6) or 31(a) to
testify on behalf of a public or private corporation,
partnership or association or governmental agency which is a
party may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may
be used by any party for any purpose if the court finds:
(A) that the witness is dead; or
(B) that the witness is at a greater distance than
100 miles from the place of trial or hearing, or is out
of the United States, unless it appears that the absence
of the witness was procured by the party offering the
deposition; or
(C) that the witness is unable to attend or testify
because of age, illness, infirmity, or imprisonment; or
(D) that the party offering the deposition has been
unable to procure the attendance of the witness by
subpoena; or
(E) upon application and notice, that such
exceptional circumstances exist as to make it desirable,
in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses
orally in open court, to allow the deposition to be
used.
A deposition taken without leave of court pursuant to a notice
under Rule 30(a)(2)(C) shall not be used against a party who
demonstrates that, when served with the notice, it was unable
through the exercise of diligence to obtain counsel to represent
it at the taking of the deposition; nor shall a deposition be
used against a party who, having received less than 11 days
notice of a deposition, has promptly upon receiving such notice
filed a motion for a protective order under Rule 26(c)(2)
requesting that the deposition not be held or be held at a
different time or place and such motion is pending at the time
the deposition is held.
(4) If only part of a deposition is offered in evidence by a
party, an adverse party may require the offeror to introduce any
other part which ought in fairness to be considered with the
part introduced, and any party may introduce any other parts.
Substitution of parties pursuant to Rule 25 does not affect
the right to use depositions previously taken; and, when an
action has been brought in any court of the United States or of
any State and another action involving the same subject matter
is afterward brought between the same parties or their
representatives or successors in interest, all depositions
lawfully taken and duly filed in the former action may be used
in the latter as if originally taken therefor. A deposition
previously taken may also be used as permitted by the Federal
Rules of Evidence.
(b) Objections to Admissibility. Subject to the provisions of Rule
28(b) and subdivision (d)(3) of this rule, objection may be made at the
trial or hearing to receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of the evidence if the
witness were then present and testifying.
(c) Form of Presentation. Except as otherwise directed by the court,
a party offering deposition testimony pursuant to this rule may offer it
in stenographic or nonstenographic form, but, if in nonstenographic
form, the party shall also provide the court with a transcript of the
portions so offered. On request of any party in a case tried before a
jury, deposition testimony offered other than for impeachment purposes
shall be presented in nonstenographic form, if available, unless the
court for good cause orders otherwise.
(d) Effect of Errors and Irregularities in Depositions.
(1) As to Notice. All errors and irregularities in the
notice for taking a deposition are waived unless written
objection is promptly served upon the party giving the notice.
(2) As to Disqualification of Officer. Objection to taking a
deposition because of disqualification of the officer before
whom it is to be taken is waived unless made before the taking
of the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with
reasonable diligence.
(3) As to Taking of Deposition.
(A) Objections to the competency of a witness or to
the competency, relevancy, or materiality of testimony
are not waived by failure to make them before or during
the taking of the deposition, unless the ground of the
objection is one which might have been obviated or
removed if presented at that time.
(B) Errors and irregularities occurring at the oral
examination in the manner of taking the deposition, in
the form of the questions or answers, in the oath or
affirmation, or in the conduct of parties, and errors of
any kind which might be obviated, removed, or cured if
promptly presented, are waived unless seasonable
objection thereto is made at the taking of the
deposition.
(C) Objections to the form of written questions
submitted under Rule 31 are waived unless served in
writing upon the party propounding them within the time
allowed for serving the succeeding cross or other
questions and within 5 days after service of the last
questions authorized.
(4) As to Completion and Return of Deposition. Errors and
irregularities in the manner in which the testimony is
transcribed or the deposition is prepared, signed, certified,
sealed, indorsed, transmitted, filed, or otherwise dealt with by
the officer under Rules 30 and 31 are waived unless a motion to
suppress the deposition or some part thereof is made with
reasonable promptness after such defect is, or with due
diligence might have been, ascertained.
(As amended Mar. 30, 1970, eff. July 1, 1970; Nov. 20, 1972, eff. July
1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993.)
Rule 33
Interrogatories to Parties______________________________________
(a) Availability. Without leave of court or written stipulation, any
party may serve upon any other party written interrogatories, not
exceeding 25 in number including all discrete subparts, to be answered
by the party served or, if the party served is a public or private
corporation or a partnership or association or governmental agency, by
any officer or agent, who shall furnish such information as is available
to the party. Leave to serve additional interrogatories shall be granted
to the extent consistent with the principles of Rule 26(b)(2). Without
leave of court or written stipulation, interrogatories may not be served
before the time specified in Rule 26(d).
(b) Answers and Objections.
(1) Each interrogatory shall be answered separately and
fully in writing under oath, unless it is objected to, in which
event the objecting party shall state the reasons for objection
and shall answer to the extent the interrogatory is not
objectionable.
(2) The answers are to be signed by the person making them,
and the objections signed by the attorney making them.
(3) The party upon whom the interrogatories have been served
shall serve a copy of the answers, and objections if any, within
30 days after the service of the interrogatories. A shorter or
longer time may be directed by the court or, in the absence of
such an order, agreed to in writing by the parties subject to
Rule 29.
(4) All grounds for an objection to an interrogatory shall
be stated with specificity. Any ground not stated in a timely
objection is waived unless the party's failure to object is
excused by the court for good cause shown.
(5) The party submitting the interrogatories may move for an
order under Rule 37(a) with respect to any objection to or other
failure to answer an interrogatory.
(c) Scope; Use at Trial. Interrogatories may relate to any matters
which can be inquired into under Rule 26(b)(1), and the answers may be
used to the extent permitted by the rules of evidence.
An interrogatory otherwise proper is not necessarily objectionable
merely because an answer to the interrogatory involves an opinion or
contention that relates to fact or the application of law to fact, but
the court may order that such an interrogatory need not be answered
until after designated discovery has been completed or until a pre-trial
conference or other later time.
(d) Option to Produce Business Records. Where the answer to an
interrogatory may be derived or ascertained from the business records,
including electronically stored information, of the party upon whom the
interrogatory has been served or from an examination, audit or
inspection of such business records, including a compilation, abstract
or summary thereof, and the burden of deriving or ascertaining the
answer is substantially the same for the party serving the interrogatory
as for the party served, it is a sufficient answer to such interrogatory
to specify the records from which the answer may be derived or
ascertained and to afford to the party serving the interrogatory
reasonable opportunity to examine, audit or inspect such records and to
make copies, compilations, abstracts, or summaries. A specification
shall be in sufficient detail to permit the interrogating party to
locate and to identify, as readily as can the party served, the records
from which the answer may be ascertained.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July
1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 12, 2006, eff. Dec. 1, 2006.)
Rule 34
Production of Documents, Electronically Stored Information, and
Things and Entry Upon Land for Inspection and Other Purposes____________
(a) Scope. Any party may serve on any other party a request (1) to
produce and permit the party making the request, or someone acting on
the requestor's behalf, to inspect, copy, test, or sample any designated
documents or electronically stored information--including writings,
drawings, graphs, charts, photographs, sound recordings, images, and
other data or data compilations stored in any medium from which
information can be obtained--translated, if necessary, by the respondent
into reasonably usable form, or to inspect, copy, test, or sample any
designated tangible things which constitute or contain matters within
the scope of Rule 26(b) and which are in the possession, custody or
control of the party upon whom the request is served; or (2) to permit
entry upon designated land or other property in the possession or
control of the party upon whom the request is served for the purpose of
inspection and measuring, surveying, photographing, testing, or sampling
the property or any designated object or operation thereon, within the
scope of Rule 26(b).
(b) Procedure. The request shall set forth, either by individual
item or by category, the items to be inspected, and describe each with
reasonable particularity. The request shall specify a reasonable time,
place, and manner of making the inspection and performing the related
acts. The request may specify the form or forms in which electronically
stored information is to be produced. Without leave of court or written
stipulation, a request may not be served before the time specified in
Rule 26(d).
The party upon whom the request is served shall serve a written
response within 30 days after the service of the request. A shorter or
longer time may be directed by the court or, in the absence of such an
order, agreed to in writing by the parties, subject to Rule 29. The
response shall state, with respect to each item or category, that
inspection and related activities will be permitted as requested, unless
the request is objected to, including an objection to the requested form
or forms for producing electronically stored information, stating the
reasons for the objection. If objection is made to part of an item or
category, the part shall be specified and inspection permitted of the
remaining parts. If objection is made to the requested form or forms for
producing electronically stored information--or if no form was specified
in the request--the responding party must state the form or forms it
intends to use. The party submitting the request may move for an order
under Rule 37(a) with respect to any objection to or other failure to
respond to the request or any part thereof, or any failure to permit
inspection as requested.
Unless the parties otherwise agree, or the court otherwise orders:
(i) a party who produces documents for inspection shall
produce them as they are kept in the usual course of business or
shall organize and label them to correspond with the categories
in the request;
(ii) if a request does not specify the form or forms for
producing electronically stored information, a responding party
must produce the information in a form or forms in which it is
ordinarily maintained or in a form or forms that are reasonably
usable; and
(iii) a party need not produce the same electronically
stored information in more than one form.
(c) Persons Not Parties. A person not a party to the action may be
compelled to produce documents and things or to submit to an inspection
as provided in Rule 45.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July
1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 12, 2006, eff. Dec. 1, 2006.)
Rule 35
Physical and Mental Examinations of Persons_____________________
(a) Order for Examination. When the mental or physical condition
(including the blood group) of a party or of a person in the custody or
under the legal control of a party, is in controversy, the court in
which the action is pending may order the party to submit to a physical
or mental examination by a suitably licensed or certified examiner or to
produce for examination the person in the party's custody or legal
control. The order may be made only on motion for good cause shown and
upon notice to the person to be examined and to all parties and shall
specify the time, place, manner, conditions, and scope of the
examination and the person or persons by whom it is to be made.
(b) Report of Examiner.
(1) If requested by the party against whom an order is made
under Rule 35(a) or the person examined, the party causing the
examination to be made shall deliver to the requesting party a
copy of the detailed written report of the examiner setting out
the examiner's findings, including results of all tests made,
diagnoses and conclusions, together with like reports of all
earlier examinations of the same condition. After delivery the
party causing the examination shall be entitled upon request to
receive from the party against whom the order is made a like
report of any examination, previously or thereafter made, of the
same condition, unless, in the case of a report of examination
of a person not a party, the party shows that the party is
unable to obtain it. The court on motion may make an order
against a party requiring delivery of a report on such terms as
are just, and if an examiner fails or refuses to make a report
the court may exclude the examiner's testimony if offered at
trial.
(2) By requesting and obtaining a report of the examination
so ordered or by taking the deposition of the examiner, the
party examined waives any privilege the party may have in that
action or any other involving the same controversy, regarding
the testimony of every other person who has examined or may
thereafter examine the party in respect of the same mental or
physical condition.
(3) This subdivision applies to examinations made by
agreement of the parties, unless the agreement expressly
provides otherwise. This subdivision does not preclude discovery
of a report of an examiner or the taking of a deposition of the
examiner in accordance with the provisions of any other rule.
(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1,
1987; Nov. 18, 1988; Apr. 30, 1991, eff. Dec. 1, 1991.)
Rule 36
Requests for Admission__________________________________________
(a) Request for Admission. A party may serve upon any other party a
written request for the admission, for purposes of the pending action
only, of the truth of any matters within the scope of Rule 26(b)(1) set
forth in the request that relate to statements or opinions of fact or of
the application of law to fact, including the genuineness of any
documents described in the request. Copies of documents shall be served
with the request unless they have been or are otherwise furnished or
made available for inspection and copying. Without leave of court or
written stipulation, requests for admission may not be served before the
time specified in Rule 26(d).
Each matter of which an admission is requested shall be separately
set forth. The matter is admitted unless, within 30 days after service
of the request, or within such shorter or longer time as the court may
allow or as the parties may agree to in writing, subject to Rule 29, the
party to whom the request is directed serves upon the party requesting
the admission a written answer or objection addressed to the matter,
signed by the party or by the party's attorney. If objection is made,
the reasons therefor shall be stated. The answer shall specifically deny
the matter or set forth in detail the reasons why the answering party
cannot truthfully admit or deny the matter. A denial shall fairly meet
the substance of the requested admission, and when good faith requires
that a party qualify an answer or deny only a part of the matter of
which an admission is requested, the party shall specify so much of it
as is true and qualify or deny the remainder. An answering party may not
give lack of information or knowledge as a reason for failure to admit
or deny unless the party states that the party has made reasonable
inquiry and that the information known or readily obtainable by the
party is insufficient to enable the party to admit or deny. A party who
considers that a matter of which an admission has been requested
presents a genuine issue for trial may not, on that ground alone, object
to the request; the party may, subject to the provisions of Rule 37(c),
deny the matter or set forth reasons why the party cannot admit or deny
it.
The party who has requested the admissions may move to determine the
sufficiency of the answers or objections. Unless the court determines
that an objection is justified, it shall order that an answer be served.
If the court determines that an answer does not comply with the
requirements of this rule, it may order either that the matter is
admitted or that an amended answer be served. The court may, in lieu of
these orders, determine that final disposition of the request be made at
a pre-trial conference or at a designated time prior to trial. The
provisions of Rule 37(a)(4) apply to the award of expenses incurred in
relation to the motion.
(b) Effect of Admission. Any matter admitted under this rule is
conclusively established unless the court on motion permits withdrawal
or amendment of the admission. Subject to the provision of Rule 16
governing amendment of a pre-trial order, the court may permit
withdrawal or amendment when the presentation of the merits of the
action will be subserved thereby and the party who obtained the
admission fails to satisfy the court that withdrawal or amendment will
prejudice that party in maintaining the action or defense on the merits.
Any admission made by a party under this rule is for the purpose of the
pending action only and is not an admission for any other purpose nor
may it be used against the party in any other proceeding.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July
1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1,
1993.)
Rule 37
Failure to Make Disclosures or Cooperate in Discovery; Sanctions
(a) Motion For Order Compelling Disclosure or Discovery. A party,
upon reasonable notice to other parties and all persons affected
thereby, may apply for an order compelling disclosure or discovery as
follows:
(1) Appropriate Court. An application for an order to a
party shall be made to the court in which the action is pending.
An application for an order to a person who is not a party shall
be made to the court in the district where the discovery is
being, or is to be, taken.
(2) Motion.
(A) If a party fails to make a disclosure required
by Rule 26(a), any other party may move to compel
disclosure and for appropriate sanctions. The motion
must include a certification that the movant has in good
faith conferred or attempted to confer with the party
not making the disclosure in an effort to secure the
disclosure without court action.
(B) If a deponent fails to answer a question
propounded or submitted under Rules 30 or 31, or a
corporation or other entity fails to make a designation
under Rule 30(b)(6) or 31(a), or a party fails to answer
an interrogatory submitted under Rule 33, or if a party,
in response to a request for inspection submitted under
Rule 34, fails to respond that inspection will be
permitted as requested or fails to permit inspection as
requested, the discovering party may move for an order
compelling an answer, or a designation, or an order
compelling inspection in accordance with the request.
The motion must include a certification that the movant
has in good faith conferred or attempted to confer with
the person or party failing to make the discovery in an
effort to secure the information or material without
court action. When taking a deposition on oral
examination, the proponent of the question may complete
or adjourn the examination before applying for an order.
(3) Evasive or Incomplete Disclosure, Answer, or Response.
For purposes of this subdivision an evasive or incomplete
disclosure, answer, or response is to be treated as a failure to
disclose, answer, or respond.
(4) Expenses and Sanctions.
(A) If the motion is granted or if the disclosure or
requested discovery is provided after the motion was
filed, the court shall, after affording an opportunity
to be heard, require the party or deponent whose conduct
necessitated the motion or the party or attorney
advising such conduct or both of them to pay to the
moving party the reasonable expenses incurred in making
the motion, including attorney's fees, unless the court
finds that the motion was filed without the movant's
first making a good faith effort to obtain the
disclosure or discovery without court action, or that
the opposing party's nondisclosure, response, or
objection was substantially justified, or that other
circumstances make an award of expenses unjust.
(B) If the motion is denied, the court may enter any
protective order authorized under Rule 26(c) and shall,
after affording an opportunity to be heard, require the
moving party or the attorney filing the motion or both
of them to pay to the party or deponent who opposed the
motion the reasonable expenses incurred in opposing the
motion, including attorney's fees, unless the court
finds that the making of the motion was substantially
justified or that other circumstances make an award of
expenses unjust.
(C) If the motion is granted in part and denied in
part, the court may enter any protective order
authorized under Rule 26(c) and may, after affording an
opportunity to be heard, apportion the reasonable
expenses incurred in relation to the motion among the
parties and persons in a just manner.
(b) Failure To Comply With Order.
(1) Sanctions by Court in District Where Deposition Is
Taken. If a deponent fails to be sworn or to answer a question
after being directed to do so by the court in the district in
which the deposition is being taken, the failure may be
considered a contempt of that court.
(2) Sanctions by Court in Which Action Is Pending. If a
party or an officer, director, or managing agent of a party or a
person designated under Rule 30(b)(6) or 31(a) to testify on
behalf of a party fails to obey an order to provide or permit
discovery, including an order made under subdivision (a) of this
rule or Rule 35, or if a party fails to obey an order entered
under Rule 26(f), the court in which the action is pending may
make such orders in regard to the failure as are just, and among
others the following:
(A) An order that the matters regarding which the
order was made or any other designated facts shall be
taken to be established for the purposes of the action
in accordance with the claim of the party obtaining the
order;
(B) An order refusing to allow the disobedient party
to support or oppose designated claims or defenses, or
prohibiting that party from introducing designated
matters in evidence;
(C) An order striking out pleadings or parts
thereof, or staying further proceedings until the order
is obeyed, or dismissing the action or proceeding or any
part thereof, or rendering a judgment by default against
the disobedient party;
(D) In lieu of any of the foregoing orders or in
addition thereto, an order treating as a contempt of
court the failure to obey any orders except an order to
submit to a physical or mental examination;
(E) Where a party has failed to comply with an order
under Rule 35(a) requiring that party to produce another
for examination, such orders as are listed in paragraphs
(A), (B), and (C) of this subdivision, unless the party
failing to comply shows that that party is unable to
produce such person for examination.
In lieu of any of the foregoing orders or in
addition thereto, the court shall require the party
failing to obey the order or the attorney advising that
party or both to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the court
finds that the failure was substantially justified or
that other circumstances make an award of expenses
unjust.
(c) Failure to Disclose; False or Misleading Disclosure; Refusal to
Admit.
(1) A party that without substantial justification fails to
disclose information required by Rule 26(a) or 26(e)(1), or to
amend a prior response to discovery as required by Rule
26(e)(2), is not, unless such failure is harmless, permitted to
use as evidence at a trial, at a hearing, or on a motion any
witness or information not so disclosed. In addition to or in
lieu of this sanction, the court, on motion and after affording
an opportunity to be heard, may impose other appropriate
sanctions. In addition to requiring payment of reasonable
expenses, including attorney's fees, caused by the failure,
these sanctions may include any of the actions authorized under
Rule 37(b)(2)(A), (B), and (C) and may include informing the
jury of the failure to make the disclosure.
(2) If a party fails to admit the genuineness of any
document or the truth of any matter as requested under Rule 36,
and if the party requesting the admissions thereafter proves the
genuineness of the document or the truth of the matter, the
requesting party may apply to the court for an order requiring
the other party to pay the reasonable expenses incurred in
making that proof, including reasonable attorney's fees. The
court shall make the order unless it finds that (A) the request
was held objectionable pursuant to Rule 36(a), or (B) the
admission sought was of no substantial importance, or (C) the
party failing to admit had reasonable ground to believe that the
party might prevail on the matter, or (D) there was other good
reason for the failure to admit.
(d) Failure of Party to Attend at Own Deposition or Serve Answers to
Interrogatories or Respond to Request for Inspection. If a party or an
officer, director, or managing agent of a party or a person designated
under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1)
to appear before the officer who is to take the deposition, after being
served with a proper notice, or (2) to serve answers or objections to
interrogatories submitted under Rule 33, after proper service of the
interrogatories, or (3) to serve a written response to a request for
inspection submitted under Rule 34, after proper service of the request,
the court in which the action is pending on motion may make such orders
in regard to the failure as are just, and among others it may take any
action authorized under subparagraphs (A), (B), and (C) of subdivision
(b)(2) of this rule. Any motion specifying a failure under clause (2) or
(3) of this subdivision shall include a certification that the movant
has in good faith conferred or attempted to confer with the party
failing to answer or respond in an effort to obtain such answer or
response without court action. In lieu of any order or in addition
thereto, the court shall require the party failing to act or the
attorney advising that party or both to pay the reasonable expenses,
including attorney's fees, caused by the failure unless the court finds
that the failure was substantially justified or that other circumstances
make an award of expenses unjust.
The failure to act described in this subdivision may not be excused
on the ground that the discovery sought is objectionable unless the
party failing to act has a pending motion for a protective order as
provided by Rule 26(c).
[(e) Subpoena of Person in Foreign Country.] (Abrogated Apr. 29,
1980, eff. Aug. 1, 1980)
(f) Electronically Stored Information. Absent exceptional
circumstances, a court may not impose sanctions under these rules on a
party for failing to provide electronically stored information lost as a
result of the routine, good-faith operation of an electronic information
system.
(g) Failure to Participate in the Framing of a Discovery Plan. If a
party or a party's attorney fails to participate in good faith in the
development and submission of a proposed discovery plan as required by
Rule 26(f), the court may, after opportunity for hearing, require such
party or attorney to pay to any other party the reasonable expenses,
including attorney's fees, caused by the failure.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July
1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Oct. 21, 1980, eff. Oct. 1,
1981; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993;
Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006.)
VI. TRIALS
Rule 38
Jury Trial of Right_____________________________________________
(a) Right Preserved. The right of trial by jury as declared by the
Seventh Amendment to the Constitution or as given by a statute of the
United States shall be preserved to the parties inviolate.
(b) Demand. Any party may demand a trial by jury of any issue
triable of right by a jury by (1) serving upon the other parties a
demand therefor in writing at any time after the commencement of the
action and not later than 10 days after the service of the last pleading
directed to such issue, and (2) filing the demand as required by Rule
5(d). Such demand may be indorsed upon a pleading of the party.
(c) Same: Specification of Issues. In the demand a party may specify
the issues which the party wishes so tried; otherwise the party shall be
deemed to have demanded trial by jury for all the issues so triable. If
the party has demanded trial by jury for only some of the issues, any
other party within 10 days after service of the demand or such lesser
time as the court may order, may serve a demand for trial by jury of any
other or all of the issues of fact in the action.
(d) Waiver. The failure of a party to serve and file a demand as
required by this rule constitutes a waiver by the party of trial by
jury. A demand for trial by jury made as herein provided may not be
withdrawn without the consent of the parties.
(e) Admiralty and Maritime Claims. These rules shall not be
construed to create a right to trial by jury of the issues in an
admiralty or maritime claim within the meaning of Rule 9(h).
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993.)
Rule 39
Trial by Jury or by the Court___________________________________
(a) By Jury. When trial by jury has been demanded as provided in
Rule 38, the action shall be designated upon the docket as a jury
action. The trial of all issues so demanded shall be by jury, unless (1)
the parties or their attorneys of record, by written stipulation filed
with the court or by an oral stipulation made in open court and entered
in the record, consent to trial by the court sitting without a jury or
(2) the court upon motion or of its own initiative finds that a right of
trial by jury of some or all of those issues does not exist under the
Constitution or statutes of the United States.
(b) By the Court. Issues not demanded for trial by jury as provided
in Rule 38 shall be tried by the court; but, notwithstanding the failure
of a party to demand a jury in an action in which such a demand might
have been made of right, the court in its discretion upon motion may
order a trial by a jury of any or all issues.
(c) Advisory Jury and Trial by Consent. In all actions not triable
of right by a jury the court upon motion or of its own initiative may
try any issue with an advisory jury or, except in actions against the
United States when a statute of the United States provides for trial
without a jury, the court, with the consent of both parties, may order a
trial with a jury whose verdict has the same effect as if trial by jury
had been a matter of right.
Rule 40
Assignment of Cases for Trial___________________________________
The district courts shall provide by rule for the placing of actions
upon the trial calendar (1) without request of the parties or (2) upon
request of a party and notice to the other parties or (3) in such other
manner as the courts deem expedient. Precedence shall be given to
actions entitled thereto by any statute of the United States.
Rule 41
Dismissal of Actions____________________________________________
(a) Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; by Stipulation. Subject to the provisions
of Rule 23(e), of Rule 66, and of any statute of the United
States, an action may be dismissed by the plaintiff without
order of court (i) by filing a notice of dismissal at any time
before service by the adverse party of an answer or of a motion
for summary judgment, whichever first occurs, or (ii) by filing
a stipulation of dismissal signed by all parties who have
appeared in the action. Unless otherwise stated in the notice of
dismissal or stipulation, the dismissal is without prejudice,
except that a notice of dismissal operates as an adjudication
upon the merits when filed by a plaintiff who has once dismissed
in any court of the United States or of any state an action
based on or including the same claim.
(2) By Order of Court. Except as provided in paragraph (1)
of this subdivision of this rule, an action shall not be
dismissed at the plaintiff's instance save upon order of the
court and upon such terms and conditions as the court deems
proper. If a counterclaim has been pleaded by a defendant prior
to the service upon the defendant of the plaintiff's motion to
dismiss, the action shall not be dismissed against the
defendant's objection unless the counterclaim can remain pending
for independent adjudication by the court. Unless otherwise
specified in the order, a dismissal under this paragraph is
without prejudice.
(b) Involuntary Dismissal: Effect Thereof. For failure of the
plaintiff to prosecute or to comply with these rules or any order of
court, a defendant may move for dismissal of an action or of any claim
against the defendant. Unless the court in its order for dismissal
otherwise specifies, a dismissal under this subdivision and any
dismissal not provided for in this rule, other than a dismissal for lack
of jurisdiction, for improper venue, or for failure to join a party
under Rule 19, operates as an adjudication upon the merits.
(c) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim.
The provisions of this rule apply to the dismissal of any counterclaim,
cross-claim, or third-party claim. A voluntary dismissal by the claimant
alone pursuant to paragraph (1) of subdivision (a) of this rule shall be
made before a responsive pleading is served or, if there is none, before
the introduction of evidence at the trial or hearing.
(d) Costs of Previously-Dismissed Action. If a plaintiff who has
once dismissed an action in any court commences an action based upon or
including the same claim against the same defendant, the court may make
such order for the payment of costs of the action previously dismissed
as it may deem proper and may stay the proceedings in the action until
the plaintiff has complied with the order.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1,
1968; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1,
1991.)
Rule 42
Consolidation; Separate Trials__________________________________
(a) Consolidation. When actions involving a common question of law
or fact are pending before the court, it may order a joint hearing or
trial of any or all the matters in issue in the actions; it may order
all the actions consolidated; and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or delay.
(b) Separate Trials. The court, in furtherance of convenience or to
avoid prejudice, or when separate trials will be conducive to expedition
and economy, may order a separate trial of any claim, cross-claim,
counterclaim, or third-party claim, or of any separate issue or of any
number of claims, cross-claims, counterclaims, third-party claims, or
issues, always preserving inviolate the right of trial by jury as
declared by the Seventh Amendment to the Constitution or as given by a
statute of the United States.
(As amended Feb. 28, 1966, eff. July 1, 1966.)
Rule 43
Taking of Testimony_____________________________________________
(a) Form. In every trial, the testimony of witnesses shall be taken
in open court, unless a federal law, these rules, the Federal Rules of
Evidence, or other rules adopted by the Supreme Court provide otherwise.
The court may, for good cause shown in compelling circumstances and upon
appropriate safeguards, permit presentation of testimony in open court
by contemporaneous transmission from a different location.
[(b) Scope of Examination and Cross-Examination.] (Abrogated Nov.
20, 1972, and Dec. 18, 1972, eff. July 1, 1975)
[(c) Record of Excluded Evidence.] (Abrogated Nov. 20, 1972, and
Dec. 18, 1972, eff. July 1, 1975)
(d) Affirmation in Lieu of Oath. Whenever under these rules an oath
is required to be taken, a solemn affirmation may be accepted in lieu
thereof.
(e) Evidence on Motions. When a motion is based on facts not
appearing of record the court may hear the matter on affidavits
presented by the respective parties, but the court may direct that the
matter be heard wholly or partly on oral testimony or depositions.
(f) Interpreters. The court may appoint an interpreter of its own
selection and may fix the interpreter's reasonable compensation. The
compensation shall be paid out of funds provided by law or by one or
more of the parties as the court may direct, and may be taxed ultimately
as costs, in the discretion of the court.
(As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 20, 1972, and Dec.
18, 1972, eff. July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 23,
1996, eff. Dec. 1, 1996.)
Rule 44
Proof of Official Record________________________________________
(a) Authentication.
(1) Domestic. An official record kept within the United
States, or any state, district, or commonwealth, or within a
territory subject to the administrative or judicial jurisdiction
of the United States, or an entry therein, when admissible for
any purpose, may be evidenced by an official publication thereof
or by a copy attested by the officer having the legal custody of
the record, or by the officer's deputy, and accompanied by a
certificate that such officer has the custody. The certificate
may be made by a judge of a court of record of the district or
political subdivision in which the record is kept, authenticated
by the seal of the court, or may be made by any public officer
having a seal of office and having official duties in the
district or political subdivision in which the record is kept,
authenticated by the seal of the officer's office.
(2) Foreign. A foreign official record, or an entry therein,
when admissible for any purpose, may be evidenced by an official
publication thereof; or a copy thereof, attested by a person
authorized to make the attestation, and accompanied by a final
certification as to the genuineness of the signature and
official position (i) of the attesting person, or (ii) of any
foreign official whose certificate of genuineness of signature
and official position relates to the attestation or is in a
chain of certificates of genuineness of signature and official
position relating to the attestation. A final certification may
be made by a secretary of embassy or legation, consul general,
vice consul, or consular agent of the United States, or a
diplomatic or consular official of the foreign country assigned
or accredited to the United States. If reasonable opportunity
has been given to all parties to investigate the authenticity
and accuracy of the documents, the court may, for good cause
shown, (i) admit an attested copy without final certification or
(ii) permit the foreign official record to be evidenced by an
attested summary with or without a final certification. The
final certification is unnecessary if the record and the
attestation are certified as provided in a treaty or convention
to which the United States and the foreign country in which the
official record is located are parties.
(b) Lack of Record. A written statement that after diligent search
no record or entry of a specified tenor is found to exist in the records
designated by the statement, authenticated as provided in subdivision
(a)(1) of this rule in the case of a domestic record, or complying with
the requirements of subdivision (a)(2) of this rule for a summary in the
case of a foreign record, is admissible as evidence that the records
contain no such record or entry.
(c) Other Proof. This rule does not prevent the proof of official
records or of entry or lack of entry therein by any other method
authorized by law.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 1991, eff. Dec. 1, 1991.)
Rule 44.1
Determination of Foreign Law____________________________________
A party who intends to raise an issue concerning the law of a
foreign country shall give notice by pleadings or other reasonable
written notice. The court, in determining foreign law, may consider any
relevant material or source, including testimony, whether or not
submitted by a party or admissible under the Federal Rules of Evidence.
The court's determination shall be treated as a ruling on a question of
law.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Nov. 20, 1972, eff.
July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987.)
Rule 45
Subpoena________________________________________________________
(a) Form; Issuance.
(1) Every subpoena shall
(A) state the name of the court from which it is
issued; and
(B) state the title of the action, the name of the
court in which it is pending, and its civil action
number; and
(C) command each person to whom it is directed to
attend and give testimony or to produce and permit
inspection, copying, testing, or sampling of designated
books, documents, electronically stored information, or
tangible things in the possession, custody or control of
that person, or to permit inspection of premises, at a
time and place therein specified; and
(D) set forth the text of subdivisions (c) and (d)
of this rule.
A command to produce evidence or to permit inspection,
copying, testing, or sampling may be joined with a command to
appear at trial or hearing or at deposition, or may be issued
separately. A subpoena may specify the form or forms in which
electronically stored information is to be produced.
(2) A subpoena must issue as follows:
(A) for attendance at a trial or hearing, from the
court for the district where the trial or hearing is to
be held;
(B) for attendance at a deposition, from the court
for the district where the deposition is to be taken,
stating the method for recording the testimony; and
(C) for production, inspection, copying, testing, or
sampling, if separate from a subpoena commanding a
person's attendance, from the court for the district
where the production or inspection is to be made.
(3) The clerk shall issue a subpoena, signed but otherwise
in blank, to a party requesting it, who shall complete it before
service. An attorney as officer of the court may also issue and
sign a subpoena on behalf of
(A) a court in which the attorney is authorized to
practice; or
(B) a court for a district in which a deposition or
production is compelled by the subpoena, if the
deposition or production pertains to an action pending
in a court in which the attorney is authorized to
practice.
(b) Service.
(1) A subpoena may be served by any person who is not a
party and is not less than 18 years of age. Service of a
subpoena upon a person named therein shall be made by delivering
a copy thereof to such person and, if the person's attendance is
commanded, by tendering to that person the fees for one day's
attendance and the mileage allowed by law. When the subpoena is
issued on behalf of the United States or an officer or agency
thereof, fees and mileage need not be tendered. Prior notice of
any commanded production of documents and things or inspection
of premises before trial shall be served on each party in the
manner prescribed by Rule 5(b).
(2) Subject to the provisions of clause (ii) of subparagraph
(c)(3)(A) of this rule, a subpoena may be served at any place
within the district of the court by which it is issued, or at
any place without the district that is within 100 miles of the
place of the deposition, hearing, trial, production, inspection,
copying, testing, or sampling specified in the subpoena or at
any place within the state where a state statute or rule of
court permits service of a subpoena issued by a state court of
general jurisdiction sitting in the place of the deposition,
hearing, trial, production, inspection, copying, testing, or
sampling specified in the subpoena. When a statute of the United
States provides therefor, the court upon proper application and
cause shown may authorize the service of a subpoena at any other
place. A subpoena directed to a witness in a foreign country who
is a national or resident of the United States shall issue under
the circumstances and in the manner and be served as provided in
Title 28, U.S.C. Sec. 1783.
(3) Proof of service when necessary shall be made by filing
with the clerk of the court by which the subpoena is issued a
statement of the date and manner of service and of the names of
the persons served, certified by the person who made the
service.
(c) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the issuance and
service of a subpoena shall take reasonable steps to avoid
imposing undue burden or expense on a person subject to that
subpoena. The court on behalf of which the subpoena was issued
shall enforce this duty and impose upon the party or attorney in
breach of this duty an appropriate sanction, which may include,
but is not limited to, lost earnings and a reasonable attorney's
fee.
(2)(A) A person commanded to produce and permit inspection,
copying, testing, or sampling of designated electronically
stored information, books, papers, documents or tangible things,
or inspection of premises need not appear in person at the place
of production or inspection unless commanded to appear for
deposition, hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person
commanded to produce and permit inspection, copying, testing, or
sampling may, within 14 days after service of the subpoena or
before the time specified for compliance if such time is less
than 14 days after service, serve upon the party or attorney
designated in the subpoena written objection to producing any or
all of the designated materials or inspection of the premises--
or to producing electronically stored information in the form or
forms requested. If objection is made, the party serving the
subpoena shall not be entitled to inspect, copy, test, or sample
the materials or inspect the premises except pursuant to an
order of the court by which the subpoena was issued. If
objection has been made, the party serving the subpoena may,
upon notice to the person commanded to produce, move at any time
for an order to compel the production, inspection, copying,
testing, or sampling. Such an order to compel shall protect any
person who is not a party or an officer of a party from
significant expense resulting from the inspection, copying,
testing, or sampling commanded.
(3)(A) On timely motion, the court by which a subpoena was
issued shall quash or modify the subpoena if it
(i) fails to allow reasonable time for compliance;
(ii) requires a person who is not a party or an
officer of a party to travel to a place more than 100
miles from the place where that person resides, is
employed or regularly transacts business in person,
except that, subject to the provisions of clause
(c)(3)(B)(iii) of this rule, such a person may in order
to attend trial be commanded to travel from any such
place within the state in which the trial is held;
(iii) requires disclosure of privileged or other
protected matter and no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other
confidential research, development, or commercial
information, or
(ii) requires disclosure of an unretained expert's
opinion or information not describing specific events or
occurrences in dispute and resulting from the expert's
study made not at the request of any party, or
(iii) requires a person who is not a party or an
officer of a party to incur substantial expense to
travel more than 100 miles to attend trial, the court
may, to protect a person subject to or affected by the
subpoena, quash or modify the subpoena or, if the party
in whose behalf the subpoena is issued shows a
substantial need for the testimony or material that
cannot be otherwise met without undue hardship and
assures that the person to whom the subpoena is
addressed will be reasonably compensated, the court may
order appearance or production only upon specified
conditions.
(d) Duties in Responding to Subpoena.
(1)(A) A person responding to a subpoena to produce
documents shall produce them as they are kept in the usual
course of business or shall organize and label them to
correspond with the categories in the demand.
(B) If a subpoena does not specify the form or forms for
producing electronically stored information, a person responding
to a subpoena must produce the information in a form or forms in
which the person ordinarily maintains it or in a form or forms
that are reasonably usable.
(C) A person responding to a subpoena need not produce the
same electronically stored information in more than one form.
(D) A person responding to a subpoena need not provide
discovery of electronically stored information from sources that
the person identifies as not reasonably accessible because of
undue burden or cost. On motion to compel discovery or to quash,
the person from whom discovery is sought must show that the
information sought is not reasonably accessible because of undue
burden or cost. If that showing is made, the court may
nonetheless order discovery from such sources if the requesting
party shows good cause, considering the limitations of Rule
26(b)(2)(C). The court may specify conditions for the discovery.
(2)(A) When information subject to a subpoena is withheld on
a claim that it is privileged or subject to protection as trial-
preparation materials, the claim shall be made expressly and
shall be supported by a description of the nature of the
documents, communications, or things not produced that is
sufficient to enable the demanding party to contest the claim.
(B) If information is produced in response to a subpoena
that is subject to a claim of privilege or of protection as
trial-preparation material, the person making the claim may
notify any party that received the information of the claim and
the basis for it. After being notified, a party must promptly
return, sequester, or destroy the specified information and any
copies it has and may not use or disclose the information until
the claim is resolved. A receiving party may promptly present
the information to the court under seal for a determination of
the claim. If the receiving party disclosed the information
before being notified, it must take reasonable steps to retrieve
it. The person who produced the information must preserve the
information until the claim is resolved.
(e) Contempt. Failure of any person without adequate excuse to obey
a subpoena served upon that person may be deemed a contempt of the court
from which the subpoena issued. An adequate cause for failure to obey
exists when a subpoena purports to require a nonparty to attend or
produce at a place not within the limits provided by clause (ii) of
subparagraph (c)(3)(A).
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1,
1980; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 25, 2005, eff. Dec. 1, 2005; Apr.
12, 2006, eff. Dec. 1, 2006.)
Rule 46
Exceptions Unnecessary__________________________________________
Formal exceptions to rulings or orders of the court are unnecessary;
but for all purposes for which an exception has heretofore been
necessary it is sufficient that a party, at the time the ruling or order
of the court is made or sought, makes known to the court the action
which the party desires the court to take or the party's objection to
the action of the court and the grounds therefor; and, if a party has no
opportunity to object to a ruling or order at the time it is made, the
absence of an objection does not thereafter prejudice the party.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)
Rule 47
Selection of Jurors_____________________________________________
(a) Examination of Jurors. The court may permit the parties or their
attorneys to conduct the examination of prospective jurors or may itself
conduct the examination. In the latter event, the court shall permit the
parties or their attorneys to supplement the examination by such further
inquiry as it deems proper or shall itself submit to the prospective
jurors such additional questions of the parties or their attorneys as it
deems proper.
(b) Peremptory Challenges. The court shall allow the number of
peremptory challenges provided by 28 U.S.C. Sec. 1870.
(c) Excuse. The court may for good cause excuse a juror from service
during trial or deliberation.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1991, eff. Dec.
1, 1991.)
Rule 48
Number of Jurors--Participation in Verdict______________________
The court shall seat a jury of not fewer than six and not more than
twelve members and all jurors shall participate in the verdict unless
excused from service by the court pursuant to Rule 47(c). Unless the
parties otherwise stipulate, (1) the verdict shall be unanimous and (2)
no verdict shall be taken from a jury reduced in size to fewer than six
members.
(As amended Apr. 30, 1991, eff. Dec. 1, 1991.)
Rule 49
Special Verdicts and Interrogatories____________________________
(a) Special Verdicts. The court may require a jury to return only a
special verdict in the form of a special written finding upon each issue
of fact. In that event the court may submit to the jury written
questions susceptible of categorical or other brief answer or may submit
written forms of the several special findings which might properly be
made under the pleadings and evidence; or it may use such other method
of submitting the issues and requiring the written findings thereon as
it deems most appropriate. The court shall give to the jury such
explanation and instruction concerning the matter thus submitted as may
be necessary to enable the jury to make its findings upon each issue. If
in so doing the court omits any issue of fact raised by the pleadings or
by the evidence, each party waives the right to a trial by jury of the
issue so omitted unless before the jury retires the party demands its
submission to the jury. As to an issue omitted without such demand the
court may make a finding; or, if it fails to do so, it shall be deemed
to have made a finding in accord with the judgment on the special
verdict.
(b) General Verdict Accompanied by Answer to Interrogatories. The
court may submit to the jury, together with appropriate forms for a
general verdict, written interrogatories upon one or more issues of fact
the decision of which is necessary to a verdict. The court shall give
such explanation or instruction as may be necessary to enable the jury
both to make answers to the interrogatories and to render a general
verdict, and the court shall direct the jury both to make written
answers and to render a general verdict. When the general verdict and
the answers are harmonious, the appropriate judgment upon the verdict
and answers shall be entered pursuant to Rule 58. When the answers are
consistent with each other but one or more is inconsistent with the
general verdict, judgment may be entered pursuant to Rule 58 in
accordance with the answers, notwithstanding the general verdict, or the
court may return the jury for further consideration of its answers and
verdict or may order a new trial. When the answers are inconsistent with
each other and one or more is likewise inconsistent with the general
verdict, judgment shall not be entered, but the court shall return the
jury for further consideration of its answers and verdict or shall order
a new trial.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1,
1987.)
Rule 50
Judgment as a Matter of Law in Jury Trials; Alternative Motion
for New Trial; Conditional Rulings______________________________________
(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue
during a jury trial and the court finds that a reasonable jury
would not have a legally sufficient evidentiary basis to find
for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law
against the party on a claim or defense that, under the
controlling law, can be maintained or defeated only with
a favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be
made at any time before the case is submitted to the jury. The
motion must specify the judgment sought and the law and facts
that entitle the movant to the judgment.
(b) Renewing the Motion After Trial; Alternative Motion for a New
Trial. If the court does not grant a motion for judgment as a matter of
law made under subdivision (a), the court is considered to have
submitted the action to the jury subject to the court's later deciding
the legal questions raised by the motion. The movant may renew its
request for judgment as a matter of law by filing a motion no later than
10 days after the entry of judgment or--if the motion addresses a jury
issue not decided by a verdict--no later than 10 days after the jury was
discharged. The movant may alternatively request a new trial or join a
motion for a new trial under Rule 59.
In ruling on a renewed motion, the court may:
(1) if a verdict was returned:
(A) allow the judgment to stand,
(B) order a new trial, or
(C) direct entry of judgment as a matter of law; or
(2) if no verdict was returned:
(A) order a new trial, or
(B) direct entry of judgment as a matter of law.
(c) Granting Renewed Motion for Judgment as a Matter of Law;
Conditional Rulings; New Trial Motion.
(1) If the renewed motion for judgment as a matter of law is
granted, the court shall also rule on the motion for a new
trial, if any, by determining whether it should be granted if
the judgment is thereafter vacated or reversed, and shall
specify the grounds for granting or denying the motion for the
new trial. If the motion for a new trial is thus conditionally
granted, the order thereon does not affect the finality of the
judgment. In case the motion for a new trial has been
conditionally granted and the judgment is reversed on appeal,
the new trial shall proceed unless the appellate court has
otherwise ordered. In case the motion for a new trial has been
conditionally denied, the appellee on appeal may assert error in
that denial; and if the judgment is reversed on appeal,
subsequent proceedings shall be in accordance with the order of
the appellate court.
(2) Any motion for a new trial under Rule 59 by a party
against whom judgment as a matter of law is rendered shall be
filed no later than 10 days after entry of the judgment.
(d) Same: Denial of Motion for Judgment as a Matter of Law. If the
motion for judgment as a matter of law is denied, the party who
prevailed on that motion may, as appellee, assert grounds entitling the
party to a new trial in the event the appellate court concludes that the
trial court erred in denying the motion for judgment. If the appellate
court reverses the judgment, nothing in this rule precludes it from
determining that the appellee is entitled to a new trial, or from
directing the trial court to determine whether a new trial shall be
granted.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 12, 2006, eff. Dec. 1,
2006.)
Rule 51
Instructions to Jury; Objections; Preserving a Claim of Error___
(a) Requests.
(1) A party may, at the close of the evidence or at an
earlier reasonable time that the court directs, file and furnish
to every other party written requests that the court instruct
the jury on the law as set forth in the requests.
(2) After the close of the evidence, a party may:
(A) file requests for instructions on issues that
could not reasonably have been anticipated at an earlier
time for requests set under Rule 51(a)(1), and
(B) with the court's permission file untimely
requests for instructions on any issue.
(b) Instructions. The court:
(1) must inform the parties of its proposed instructions and
proposed action on the requests before instructing the jury and
before final jury arguments;
(2) must give the parties an opportunity to object on the
record and out of the jury's hearing to the proposed
instructions and actions on requests before the instructions and
arguments are delivered; and
(3) may instruct the jury at any time after trial begins and
before the jury is discharged.
(c) Objections.
(1) A party who objects to an instruction or the failure to
give an instruction must do so on the record, stating distinctly
the matter objected to and the grounds of the objection.
(2) An objection is timely if:
(A) a party that has been informed of an instruction
or action on a request before the jury is instructed and
before final jury arguments, as provided by Rule
51(b)(1), objects at the opportunity for objection
required by Rule 51(b)(2); or
(B) a party that has not been informed of an
instruction or action on a request before the time for
objection provided under Rule 51(b)(2) objects promptly
after learning that the instruction or request will be,
or has been, given or refused.
(d) Assigning Error; Plain Error.
(1) A party may assign as error:
(A) an error in an instruction actually given if
that party made a proper objection under Rule 51(c), or
(B) a failure to give an instruction if that party
made a proper request under Rule 51(a), and--unless the
court made a definitive ruling on the record rejecting
the request--also made a proper objection under Rule
51(c).
(2) A court may consider a plain error in the instructions
affecting substantial rights that has not been preserved as
required by Rule 51(d)(1)(A) or (B).
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Mar. 27, 2003, eff. Dec. 1,
2003.)
Rule 52
Findings by the Court; Judgment on Partial Findings_____________
(a) Effect. In all actions tried upon the facts without a jury or
with an advisory jury, the court shall find the facts specially and
state separately its conclusions of law thereon, and judgment shall be
entered pursuant to Rule 58; and in granting or refusing interlocutory
injunctions the court shall similarly set forth the findings of fact and
conclusions of law which constitute the grounds of its action. Requests
for findings are not necessary for purposes of review. Findings of fact,
whether based on oral or documentary evidence, shall not be set aside
unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge of the credibility of the
witnesses. The findings of a master, to the extent that the court adopts
them, shall be considered as the findings of the court. It will be
sufficient if the findings of fact and conclusions of law are stated
orally and recorded in open court following the close of the evidence or
appear in an opinion or memorandum of decision filed by the court.
Findings of fact and conclusions of law are unnecessary on decisions of
motions under Rules 12 or 56 or any other motion except as provided in
subdivision (c) of this rule.
(b) Amendment. On a party's motion filed no later than 10 days after
entry of judgment, the court may amend its findings--or make additional
findings--and may amend the judgment accordingly. The motion may
accompany a motion for a new trial under Rule 59. When findings of fact
are made in actions tried without a jury, the sufficiency of the
evidence supporting the findings may be later questioned whether or not
in the district court the party raising the question objected to the
findings, moved to amend them, or moved for partial findings.
(c) Judgment on Partial Findings. If during a trial without a jury a
party has been fully heard on an issue and the court finds against the
party on that issue, the court may enter judgment as a matter of law
against that party with respect to a claim or defense that cannot under
the controlling law be maintained or defeated without a favorable
finding on that issue, or the court may decline to render any judgment
until the close of all the evidence. Such a judgment shall be supported
by findings of fact and conclusions of law as required by subdivision
(a) of this rule.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1,
1985; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 27, 1995, eff. Dec. 1, 1995.)
Rule 53
Masters_________________________________________________________
(a) Appointment.
(1) Unless a statute provides otherwise, a court may appoint
a master only to:
(A) perform duties consented to by the parties;
(B) hold trial proceedings and make or recommend
findings of fact on issues to be decided by the court
without a jury if appointment is warranted by
(i) some exceptional condition, or
(ii) the need to perform an accounting or
resolve a difficult computation of damages; or
(C) address pretrial and post-trial matters that
cannot be addressed effectively and timely by an
available district judge or magistrate judge of the
district.
(2) A master must not have a relationship to the parties,
counsel, action, or court that would require disqualification of
a judge under 28 U.S.C. Sec. 455 unless the parties consent with
the court's approval to appointment of a particular person after
disclosure of any potential grounds for disqualification.
(3) In appointing a master, the court must consider the
fairness of imposing the likely expenses on the parties and must
protect against unreasonable expense or delay.
(b) Order Appointing Master.
(1) Notice. The court must give the parties notice and an
opportunity to be heard before appointing a master. A party may
suggest candidates for appointment.
(2) Contents. The order appointing a master must direct the
master to proceed with all reasonable diligence and must state:
(A) the master's duties, including any investigation
or enforcement duties, and any limits on the master's
authority under Rule 53(c);
(B) the circumstances--if any--in which the master
may communicate ex parte with the court or a party;
(C) the nature of the materials to be preserved and
filed as the record of the master's activities;
(D) the time limits, method of filing the record,
other procedures, and standards for reviewing the
master's orders, findings, and recommendations; and
(E) the basis, terms, and procedure for fixing the
master's compensation under Rule 53(h).
(3) Entry of Order. The court may enter the order appointing
a master only after the master has filed an affidavit disclosing
whether there is any ground for disqualification under 28 U.S.C.
Sec. 455 and, if a ground for disqualification is disclosed,
after the parties have consented with the court's approval to
waive the disqualification.
(4) Amendment. The order appointing a master may be amended
at any time after notice to the parties, and an opportunity to
be heard.
(c) Master's Authority. Unless the appointing order expressly
directs otherwise, a master has authority to regulate all proceedings
and take all appropriate measures to perform fairly and efficiently the
assigned duties. The master may by order impose upon a party any
noncontempt sanction provided by Rule 37 or 45, and may recommend a
contempt sanction against a party and sanctions against a nonparty.
(d) Evidentiary Hearings. Unless the appointing order expressly
directs otherwise, a master conducting an evidentiary hearing may
exercise the power of the appointing court to compel, take, and record
evidence.
(e) Master's Orders. A master who makes an order must file the order
and promptly serve a copy on each party. The clerk must enter the order
on the docket.
(f) Master's Reports. A master must report to the court as required
by the order of appointment. The master must file the report and
promptly serve a copy of the report on each party unless the court
directs otherwise.
(g) Action on Master's Order, Report, or Recommendations.
(1) Action. In acting on a master's order, report, or
recommendations, the court must afford an opportunity to be
heard and may receive evidence, and may: adopt or affirm;
modify; wholly or partly reject or reverse; or resubmit to the
master with instructions.
(2) Time To Object or Move. A party may file objections to--
or a motion to adopt or modify--the master's order, report, or
recommendations no later than 20 days from the time the master's
order, report, or recommendations are served, unless the court
sets a different time.
(3) Fact Findings. The court must decide de novo all
objections to findings of fact made or recommended by a master
unless the parties stipulate with the court's consent that:
(A) the master's findings will be reviewed for clear
error, or
(B) the findings of a master appointed under Rule
53(a)(1)(A) or (C) will be final.
(4) Legal Conclusions. The court must decide de novo all
objections to conclusions of law made or recommended by a
master.
(5) Procedural Matters. Unless the order of appointment
establishes a different standard of review, the court may set
aside a master's ruling on a procedural matter only for an abuse
of discretion.
(h) Compensation.
(1) Fixing Compensation. The court must fix the master's
compensation before or after judgment on the basis and terms
stated in the order of appointment, but the court may set a new
basis and terms after notice and an opportunity to be heard.
(2) Payment. The compensation fixed under Rule 53(h)(1) must
be paid either:
(A) by a party or parties; or
(B) from a fund or subject matter of the action
within the court's control.
(3) Allocation. The court must allocate payment of the
master's compensation among the parties after considering the
nature and amount of the controversy, the means of the parties,
and the extent to which any party is more responsible than other
parties for the reference to a master. An interim allocation may
be amended to reflect a decision on the merits.
(i) Appointment of Magistrate Judge. A magistrate judge is subject
to this rule only when the order referring a matter to the magistrate
judge expressly provides that the reference is made under this rule.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 28, 1983, eff. Aug.
1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1,
1991; Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1,
2003.)
VII. JUDGMENT
Rule 54
Judgments; Costs________________________________________________
(a) Definition; Form. ``Judgment'' as used in these rules includes a
decree and any order from which an appeal lies. A judgment shall not
contain a recital of pleadings, the report of a master, or the record of
prior proceedings.
(b) Judgment Upon Multiple Claims or Involving Multiple Parties.
When more than one claim for relief is presented in an action, whether
as a claim, counterclaim, cross-claim, or third-party claim, or when
multiple parties are involved, the court may direct the entry of a final
judgment as to one or more but fewer than all of the claims or parties
only upon an express determination that there is no just reason for
delay and upon an express direction for the entry of judgment. In the
absence of such determination and direction, any order or other form of
decision, however designated, which adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties shall
not terminate the action as to any of the claims or parties, and the
order or other form of decision is subject to revision at any time
before the entry of judgment adjudicating all the claims and the rights
and liabilities of all the parties.
(c) Demand for Judgment. A judgment by default shall not be
different in kind from or exceed in amount that prayed for in the demand
for judgment. Except as to a party against whom a judgment is entered by
default, every final judgment shall grant the relief to which the party
in whose favor it is rendered is entitled, even if the party has not
demanded such relief in the party's pleadings.
(d) Costs; Attorneys' Fees.
(1) Costs Other than Attorneys' Fees. Except when express
provision therefor is made either in a statute of the United
States or in these rules, costs other than attorneys' fees shall
be allowed as of course to the prevailing party unless the court
otherwise directs; but costs against the United States, its
officers, and agencies shall be imposed only to the extent
permitted by law. Such costs may be taxed by the clerk on one
day's notice. On motion served within 5 days thereafter, the
action of the clerk may be reviewed by the court.
(2) Attorneys' Fees.
(A) Claims for attorneys' fees and related
nontaxable expenses shall be made by motion unless the
substantive law governing the action provides for the
recovery of such fees as an element of damages to be
proved at trial.
(B) Unless otherwise provided by statute or order of
the court, the motion must be filed no later than 14
days after entry of judgment; must specify the judgment
and the statute, rule, or other grounds entitling the
moving party to the award; and must state the amount or
provide a fair estimate of the amount sought. If
directed by the court, the motion shall also disclose
the terms of any agreement with respect to fees to be
paid for the services for which claim is made.
(C) On request of a party or class member, the court
shall afford an opportunity for adversary submissions
with respect to the motion in accordance with Rule 43(e)
or Rule 78. The court may determine issues of liability
for fees before receiving submissions bearing on issues
of evaluation of services for which liability is imposed
by the court. The court shall find the facts and state
its conclusions of law as provided in Rule 52(a).
(D) By local rule the court may establish special
procedures by which issues relating to such fees may be
resolved without extensive evidentiary hearings. In
addition, the court may refer issues relating to the
value of services to a special master under Rule 53
without regard to the provisions of Rule 53(a)(1) and
may refer a motion for attorneys' fees to a magistrate
judge under Rule 72(b) as if it were a dispositive
pretrial matter.
(E) The provisions of subparagraphs (A) through (D)
do not apply to claims for fees and expenses as
sanctions for violations of these rules or under 28
U.S.C. Sec. 1927.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 17, 1961, eff. July
19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 27, 2003, eff. Dec. 1,
2003.)
Rule 55
Default_________________________________________________________
(a) Entry. When a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend as provided by
these rules and that fact is made to appear by affidavit or otherwise,
the clerk shall enter the party's default.
(b) Judgment. Judgment by default may be entered as follows:
(1) By the Clerk. When the plaintiff's claim against a
defendant is for a sum certain or for a sum which can by
computation be made certain, the clerk upon request of the
plaintiff and upon affidavit of the amount due shall enter
judgment for that amount and costs against the defendant, if the
defendant has been defaulted for failure to appear and is not an
infant or incompetent person.
(2) By the Court. In all other cases the party entitled to a
judgment by default shall apply to the court therefor; but no
judgment by default shall be entered against an infant or
incompetent person unless represented in the action by a general
guardian, committee, conservator, or other such representative
who has appeared therein. If the party against whom judgment by
default is sought has appeared in the action, the party (or, if
appearing by representative, the party's representative) shall
be served with written notice of the application for judgment at
least 3 days prior to the hearing on such application. If, in
order to enable the court to enter judgment or to carry it into
effect, it is necessary to take an account or to determine the
amount of damages or to establish the truth of any averment by
evidence or to make an investigation of any other matter, the
court may conduct such hearings or order such references as it
deems necessary and proper and shall accord a right of trial by
jury to the parties when and as required by any statute of the
United States.
(c) Setting Aside Default. For good cause shown the court may set
aside an entry of default and, if a judgment by default has been
entered, may likewise set it aside in accordance with Rule 60(b).
(d) Plaintiffs, Counterclaimants, Cross-Claimants. The provisions of
this rule apply whether the party entitled to the judgment by default is
a plaintiff, a third-party plaintiff, or a party who has pleaded a
cross-claim or counterclaim. In all cases a judgment by default is
subject to the limitations of Rule 54(c).
(e) Judgment Against the United States. No judgment by default shall
be entered against the United States or an officer or agency thereof
unless the claimant establishes a claim or right to relief by evidence
satisfactory to the court.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)
Rule 56
Summary Judgment________________________________________________
(a) For Claimant. A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory judgment may, at
any time after the expiration of 20 days from the commencement of the
action or after service of a motion for summary judgment by the adverse
party, move with or without supporting affidavits for a summary judgment
in the party's favor upon all or any part thereof.
(b) For Defending Party. A party against whom a claim, counterclaim,
or cross-claim is asserted or a declaratory judgment is sought may, at
any time, move with or without supporting affidavits for a summary
judgment in the party's favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion shall be served at
least 10 days before the time fixed for the hearing. The adverse party
prior to the day of hearing may serve opposing affidavits. The judgment
sought shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine
issue as to the amount of damages.
(d) Case Not Fully Adjudicated on Motion. If on motion under this
rule judgment is not rendered upon the whole case or for all the relief
asked and a trial is necessary, the court at the hearing of the motion,
by examining the pleadings and the evidence before it and by
interrogating counsel, shall if practicable ascertain what material
facts exist without substantial controversy and what material facts are
actually and in good faith controverted. It shall thereupon make an
order specifying the facts that appear without substantial controversy,
including the extent to which the amount of damages or other relief is
not in controversy, and directing such further proceedings in the action
as are just. Upon the trial of the action the facts so specified shall
be deemed established, and the trial shall be conducted accordingly.
(e) Form of Affidavits; Further Testimony; Defense Required.
Supporting and opposing affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify to the
matters stated therein. Sworn or certified copies of all papers or parts
thereof referred to in an affidavit shall be attached thereto or served
therewith. The court may permit affidavits to be supplemented or opposed
by depositions, answers to interrogatories, or further affidavits. When
a motion for summary judgment is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials
of the adverse party's pleading, but the adverse party's response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial. If the
adverse party does not so respond, summary judgment, if appropriate,
shall be entered against the adverse party.
(f) When Affidavits Are Unavailable. Should it appear from the
affidavits of a party opposing the motion that the party cannot for
reasons stated present by affidavit facts essential to justify the
party's opposition, the court may refuse the application for judgment or
may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such other
order as is just.
(g) Affidavits Made in Bad Faith. Should it appear to the
satisfaction of the court at any time that any of the affidavits
presented pursuant to this rule are presented in bad faith or solely for
the purpose of delay, the court shall forthwith order the party
employing them to pay to the other party the amount of the reasonable
expenses which the filing of the affidavits caused the other party to
incur, including reasonable attorney's fees, and any offending party or
attorney may be adjudged guilty of contempt.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987.)
Rule 57
Declaratory Judgments___________________________________________
The procedure for obtaining a declaratory judgment pursuant to Title
28, U.S.C., Sec. 2201, shall be in accordance with these rules, and the
right to trial by jury may be demanded under the circumstances and in
the manner provided in Rules 38 and 39. The existence of another
adequate remedy does not preclude a judgment for declaratory relief in
cases where it is appropriate. The court may order a speedy hearing of
an action for a declaratory judgment and may advance it on the calendar.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949.)
Rule 58
Entry of Judgment_______________________________________________
(a) Separate Document.
(1) Every judgment and amended judgment must be set forth on
a separate document, but a separate document is not required for
an order disposing of a motion:
(A) for judgment under Rule 50(b);
(B) to amend or make additional findings of fact
under Rule 52(b);
(C) for attorney fees under Rule 54;
(D) for a new trial, or to alter or amend the
judgment, under Rule 59; or
(E) for relief under Rule 60.
(2) Subject to Rule 54(b):
(A) unless the court orders otherwise, the clerk
must, without awaiting the court's direction, promptly
prepare, sign, and enter the judgment when:
(i) the jury returns a general verdict,
(ii) the court awards only costs or a sum
certain, or
(iii) the court denies all relief;
(B) the court must promptly approve the form of the
judgment, which the clerk must promptly enter, when:
(i) the jury returns a special verdict or a
general verdict accompanied by interrogatories,
or
(ii) the court grants other relief not
described in Rule 58(a)(2).
(b) Time of Entry. Judgment is entered for purposes of these rules:
(1) if Rule 58(a)(1) does not require a separate document,
when it is entered in the civil docket under Rule 79(a), and
(2) if Rule 58(a)(1) requires a separate document, when it
is entered in the civil docket under Rule 79(a) and when the
earlier of these events occurs:
(A) when it is set forth on a separate document, or
(B) when 150 days have run from entry in the civil
docket under Rule 79(a).
(c) Cost or Fee Awards.
(1) Entry of judgment may not be delayed, nor the time for
appeal extended, in order to tax costs or award fees, except as
provided in Rule 58(c)(2).
(2) When a timely motion for attorney fees is made under
Rule 54(d)(2), the court may act before a notice of appeal has
been filed and has become effective to order that the motion
have the same effect under Federal Rule of Appellate Procedure
4(a)(4) as a timely motion under Rule 59.
(d) Request for Entry. A party may request that judgment be set
forth on a separate document as required by Rule 58(a)(1).
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1,
2002.)
Rule 59
New Trials; Amendment of Judgments______________________________
(a) Grounds. A new trial may be granted to all or any of the parties
and on all or part of the issues (1) in an action in which there has
been a trial by jury, for any of the reasons for which new trials have
heretofore been granted in actions at law in the courts of the United
States; and (2) in an action tried without a jury, for any of the
reasons for which rehearings have heretofore been granted in suits in
equity in the courts of the United States. On a motion for a new trial
in an action tried without a jury, the court may open the judgment if
one has been entered, take additional testimony, amend findings of fact
and conclusions of law or make new findings and conclusions, and direct
the entry of a new judgment.
(b) Time for Motion. Any motion for a new trial shall be filed no
later than 10 days after entry of the judgment.
(c) Time for Serving Affidavits. When a motion for new trial is
based on affidavits, they shall be filed with the motion. The opposing
party has 10 days after service to file opposing affidavits, but that
period may be extended for up to 20 days, either by the court for good
cause or by the parties' written stipulation. The court may permit reply
affidavits.
(d) On Court's Initiative; Notice; Specifying Grounds. No later than
10 days after entry of judgment the court, on its own, may order a new
trial for any reason that would justify granting one on a party's
motion. After giving the parties notice and an opportunity to be heard,
the court may grant a timely motion for a new trial for a reason not
stated in the motion. When granting a new trial on its own initiative or
for a reason not stated in a motion, the court shall specify the grounds
in its order.
(e) Motion to Alter or Amend Judgment. Any motion to alter or amend
a judgment shall be filed no later than 10 days after entry of the
judgment.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July
1, 1966; Apr. 27, 1995, eff. Dec. 1, 1995.)
Rule 60
Relief From Judgment or Order___________________________________
(a) Clerical Mistakes. Clerical mistakes in judgments, orders or
other parts of the record and errors therein arising from oversight or
omission may be corrected by the court at any time of its own initiative
or on the motion of any party and after such notice, if any, as the
court orders. During the pendency of an appeal, such mistakes may be so
corrected before the appeal is docketed in the appellate court, and
thereafter while the appeal is pending may be so corrected with leave of
the appellate court.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud, Etc. On motion and upon such terms as are just, the
court may relieve a party or a party's legal representative from a final
judgment, order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated,
or it is no longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the
operation of the judgment. The motion shall be made within a reasonable
time, and for reasons (1), (2), and (3) not more than one year after the
judgment, order, or proceeding was entered or taken. A motion under this
subdivision (b) does not affect the finality of a judgment or suspend
its operation. This rule does not limit the power of a court to
entertain an independent action to relieve a party from a judgment,
order, or proceeding, or to grant relief to a defendant not actually
personally notified as provided in Title 28, U.S.C., Sec. 1655, or to
set aside a judgment for fraud upon the court. Writs of coram nobis,
coram vobis, audita querela, and bills of review and bills in the nature
of a bill of review, are abolished, and the procedure for obtaining any
relief from a judgment shall be by motion as prescribed in these rules
or by an independent action.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Mar. 2, 1987, eff. Aug. 1, 1987.)
Rule 61
Harmless Error__________________________________________________
No error in either the admission or the exclusion of evidence and no
error or defect in any ruling or order or in anything done or omitted by
the court or by any of the parties is ground for granting a new trial or
for setting aside a verdict or for vacating, modifying, or otherwise
disturbing a judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice. The court at
every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties.
Rule 62
Stay of Proceedings To Enforce a Judgment_______________________
(a) Automatic Stay; Exceptions--Injunctions, Receiverships, and
Patent Accountings. Except as stated herein, no execution shall issue
upon a judgment nor shall proceedings be taken for its enforcement until
the expiration of 10 days after its entry. Unless otherwise ordered by
the court, an interlocutory or final judgment in an action for an
injunction or in a receivership action, or a judgment or order directing
an accounting in an action for infringement of letters patent, shall not
be stayed during the period after its entry and until an appeal is taken
or during the pendency of an appeal. The provisions of subdivision (c)
of this rule govern the suspending, modifying, restoring, or granting of
an injunction during the pendency of an appeal.
(b) Stay on Motion for New Trial or for Judgment. In its discretion
and on such conditions for the security of the adverse party as are
proper, the court may stay the execution of or any proceedings to
enforce a judgment pending the disposition of a motion for a new trial
or to alter or amend a judgment made pursuant to Rule 59, or of a motion
for relief from a judgment or order made pursuant to Rule 60, or of a
motion for judgment in accordance with a motion for a directed verdict
made pursuant to Rule 50, or of a motion for amendment to the findings
or for additional findings made pursuant to Rule 52(b).
(c) Injunction Pending Appeal. When an appeal is taken from an
interlocutory or final judgment granting, dissolving, or denying an
injunction, the court in its discretion may suspend, modify, restore, or
grant an injunction during the pendency of the appeal upon such terms as
to bond or otherwise as it considers proper for the security of the
rights of the adverse party. If the judgment appealed from is rendered
by a district court of three judges specially constituted pursuant to a
statute of the United States, no such order shall be made except (1) by
such court sitting in open court or (2) by the assent of all the judges
of such court evidenced by their signatures to the order.
(d) Stay Upon Appeal. When an appeal is taken the appellant by
giving a supersedeas bond may obtain a stay subject to the exceptions
contained in subdivision (a) of this rule. The bond may be given at or
after the time of filing the notice of appeal or of procuring the order
allowing the appeal, as the case may be. The stay is effective when the
supersedeas bond is approved by the court.
(e) Stay in Favor of the United States or Agency Thereof. When an
appeal is taken by the United States or an officer or agency thereof or
by direction of any department of the Government of the United States
and the operation or enforcement of the judgment is stayed, no bond,
obligation, or other security shall be required from the appellant.
(f) Stay According to State Law. In any state in which a judgment is
a lien upon the property of the judgment debtor and in which the
judgment debtor is entitled to a stay of execution, a judgment debtor is
entitled, in the district court held therein, to such stay as would be
accorded the judgment debtor had the action been maintained in the
courts of that state.
(g) Power of Appellate Court Not Limited. The provisions in this
rule do not limit any power of an appellate court or of a judge or
justice thereof to stay proceedings during the pendency of an appeal or
to suspend, modify, restore, or grant an injunction during the pendency
of an appeal or to make any order appropriate to preserve the status quo
or the effectiveness of the judgment subsequently to be entered.
(h) Stay of Judgment as to Multiple Claims or Multiple Parties. When
a court has ordered a final judgment under the conditions stated in Rule
54(b), the court may stay enforcement of that judgment until the
entering of a subsequent judgment or judgments and may prescribe such
conditions as are necessary to secure the benefit thereof to the party
in whose favor the judgment is entered.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Apr. 17, 1961, eff. July 19, 1961; Mar. 2, 1987, eff. Aug. 1,
1987.)
Rule 63
Inability of a Judge to Proceed_________________________________
If a trial or hearing has been commenced and the judge is unable to
proceed, any other judge may proceed with it upon certifying familiarity
with the record and determining that the proceedings in the case may be
completed without prejudice to the parties. In a hearing or trial
without a jury, the successor judge shall at the request of a party
recall any witness whose testimony is material and disputed and who is
available to testify again without undue burden. The successor judge may
also recall any other witness.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1,
1991.)
VIII. PROVISIONAL AND FINAL REMEDIES
Rule 64
Seizure of Person or Property___________________________________
At the commencement of and during the course of an action, all
remedies providing for seizure of person or property for the purpose of
securing satisfaction of the judgment ultimately to be entered in the
action are available under the circumstances and in the manner provided
by the law of the state in which the district court is held, existing at
the time the remedy is sought, subject to the following qualifications:
(1) any existing statute of the United States governs to the extent to
which it is applicable; (2) the action in which any of the foregoing
remedies is used shall be commenced and prosecuted or, if removed from a
state court, shall be prosecuted after removal, pursuant to these rules.
The remedies thus available include arrest, attachment, garnishment,
replevin, sequestration, and other corresponding or equivalent remedies,
however designated and regardless of whether by state procedure the
remedy is ancillary to an action or must be obtained by an independent
action.
Rule 65
Injunctions_____________________________________________________
(a) Preliminary Injunction.
(1) Notice. No preliminary injunction shall be issued
without notice to the adverse party.
(2) Consolidation of Hearing With Trial on Merits. Before or
after the commencement of the hearing of an application for a
preliminary injunction, the court may order the trial of the
action on the merits to be advanced and consolidated with the
hearing of the application. Even when this consolidation is not
ordered, any evidence received upon an application for a
preliminary injunction which would be admissible upon the trial
on the merits becomes part of the record on the trial and need
not be repeated upon the trial. This subdivision (a)(2) shall be
so construed and applied as to save to the parties any rights
they may have to trial by jury.
(b) Temporary Restraining Order; Notice; Hearing; Duration. A
temporary restraining order may be granted without written or oral
notice to the adverse party or that party's attorney only if (1) it
clearly appears from specific facts shown by affidavit or by the
verified complaint that immediate and irreparable injury, loss, or
damage will result to the applicant before the adverse party or that
party's attorney can be heard in opposition, and (2) the applicant's
attorney certifies to the court in writing the efforts, if any, which
have been made to give the notice and the reasons supporting the claim
that notice should not be required. Every temporary restraining order
granted without notice shall be indorsed with the date and hour of
issuance; shall be filed forthwith in the clerk's office and entered of
record; shall define the injury and state why it is irreparable and why
the order was granted without notice; and shall expire by its terms
within such time after entry, not to exceed 10 days, as the court fixes,
unless within the time so fixed the order, for good cause shown, is
extended for a like period or unless the party against whom the order is
directed consents that it may be extended for a longer period. The
reasons for the extension shall be entered of record. In case a
temporary restraining order is granted without notice, the motion for a
preliminary injunction shall be set down for hearing at the earliest
possible time and takes precedence of all matters except older matters
of the same character; and when the motion comes on for hearing the
party who obtained the temporary restraining order shall proceed with
the application for a preliminary injunction and, if the party does not
do so, the court shall dissolve the temporary restraining order. On 2
days' notice to the party who obtained the temporary restraining order
without notice or on such shorter notice to that party as the court may
prescribe, the adverse party may appear and move its dissolution or
modification and in that event the court shall proceed to hear and
determine such motion as expeditiously as the ends of justice require.
(c) Security. No restraining order or preliminary injunction shall
issue except upon the giving of security by the applicant, in such sum
as the court deems proper, for the payment of such costs and damages as
may be incurred or suffered by any party who is found to have been
wrongfully enjoined or restrained. No such security shall be required of
the United States or of an officer or agency thereof.
The provisions of Rule 65.1 apply to a surety upon a bond or
undertaking under this rule.
(d) Form and Scope of Injunction or Restraining Order. Every order
granting an injunction and every restraining order shall set forth the
reasons for its issuance; shall be specific in terms; shall describe in
reasonable detail, and not by reference to the complaint or other
document, the act or acts sought to be restrained; and is binding only
upon the parties to the action, their officers, agents, servants,
employees, and attorneys, and upon those persons in active concert or
participation with them who receive actual notice of the order by
personal service or otherwise.
(e) Employer and Employee; Interpleader; Constitutional Cases. These
rules do not modify any statute of the United States relating to
temporary restraining orders and preliminary injunctions in actions
affecting employer and employee; or the provisions of Title 28, U.S.C.,
Sec. 2361, relating to preliminary injunctions in actions of
interpleader or in the nature of interpleader; or Title 28, U.S.C.,
Sec. 2284, relating to actions required by Act of Congress to be heard
and determined by a district court of three judges.
(f) Copyright Impoundment. This rule applies to copyright
impoundment proceedings.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 23, 2001, eff. Dec. 1, 2001.)
Rule 65.1
Security: Proceedings Against Sureties__________________________
Whenever these rules, including the Supplemental Rules for
Admiralty or Maritime Claims and Asset Forfeiture Actions, require or
permit the giving of security by a party, and security is given in the
form of a bond or stipulation or other undertaking with one or more
sureties, each surety submits to the jurisdiction of the court and
irrevocably appoints the clerk of the court as the surety's agent upon
whom any papers affecting the surety's liability on the bond or
undertaking may be served. The surety's liability may be enforced on
motion without the necessity of an independent action. The motion and
such notice of the motion as the court prescribes may be served on the
clerk of the court, who shall forthwith mail copies to the sureties if
their addresses are known.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 12, 2006, eff. Dec. 1, 2006.)
Rule 66
Receivers Appointed by Federal Courts___________________________
An action wherein a receiver has been appointed shall not be
dismissed except by order of the court. The practice in the
administration of estates by receivers or by other similar officers
appointed by the court shall be in accordance with the practice
heretofore followed in the courts of the United States or as provided in
rules promulgated by the district courts. In all other respects the
action in which the appointment of a receiver is sought or which is
brought by or against a receiver is governed by these rules.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949.)
Rule 67
Deposit in Court________________________________________________
In an action in which any part of the relief sought is a judgment
for a sum of money or the disposition of a sum of money or the
disposition of any other thing capable of delivery, a party, upon notice
to every other party, and by leave of court, may deposit with the court
all or any part of such sum or thing, whether or not that party claims
all or any part of the sum or thing. The party making the deposit shall
serve the order permitting deposit on the clerk of the court. Money paid
into court under this rule shall be deposited and withdrawn in
accordance with the provisions of Title 28, U.S.C., Sec. Sec. 2041, and
2042; the Act of June 26, 1934, c. 756, Sec. 23, as amended (48 Stat.
1236, 58 Stat. 845), U.S.C., Title 31, Sec. 725v; \1\ or any like
statute. The fund shall be deposited in an interest-bearing account or
invested in an interest-bearing instrument approved by the court.
---------------------------------------------------------------------------
\1\ Repealed and reenacted as 28 U.S.C. Sec. Sec. 572a and 2043 by
Public Law 97-258, Sec. Sec. 2(g)(3)(B), (4)(E), 5(b), Sept. 13, 1982,
96 Stat. 1061, 1068.
---------------------------------------------------------------------------
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 28, 1983, eff. Aug.
1, 1983.)
Rule 68
Offer of Judgment_______________________________________________
At any time more than 10 days before the trial begins, a party
defending against a claim may serve upon the adverse party an offer to
allow judgment to be taken against the defending party for the money or
property or to the effect specified in the offer, with costs then
accrued. If within 10 days after the service of the offer the adverse
party serves written notice that the offer is accepted, either party may
then file the offer and notice of acceptance together with proof of
service thereof and thereupon the clerk shall enter judgment. An offer
not accepted shall be deemed withdrawn and evidence thereof is not
admissible except in a proceeding to determine costs. If the judgment
finally obtained by the offeree is not more favorable than the offer,
the offeree must pay the costs incurred after the making of the offer.
The fact that an offer is made but not accepted does not preclude a
subsequent offer. When the liability of one party to another has been
determined by verdict or order or judgment, but the amount or extent of
the liability remains to be determined by further proceedings, the party
adjudged liable may make an offer of judgment, which shall have the same
effect as an offer made before trial if it is served within a reasonable
time not less than 10 days prior to the commencement of hearings to
determine the amount or extent of liability.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July
1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.)
Rule 69
Execution_______________________________________________________
(a) In General. Process to enforce a judgment for the payment of
money shall be a writ of execution, unless the court directs otherwise.
The procedure on execution, in proceedings supplementary to and in aid
of a judgment, and in proceedings on and in aid of execution shall be in
accordance with the practice and procedure of the state in which the
district court is held, existing at the time the remedy is sought,
except that any statute of the United States governs to the extent that
it is applicable. In aid of the judgment or execution, the judgment
creditor or a successor in interest when that interest appears of
record, may obtain discovery from any person, including the judgment
debtor, in the manner provided in these rules or in the manner provided
by the practice of the state in which the district court is held.
(b) Against Certain Public Officers. When a judgment has been
entered against a collector or other officer of revenue under the
circumstances stated in Title 28, U.S.C., Sec. 2006, or against an
officer of Congress in an action mentioned in the Act of March 3, 1875,
ch. 130, Sec. 8 (18 Stat. 401), U.S.C., Title 2, Sec. 118, and when the
court has given the certificate of probable cause for the officer's act
as provided in those statutes, execution shall not issue against the
officer or the officer's property but the final judgment shall be
satisfied as provided in such statutes.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July
1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987.)
Rule 70
Judgment for Specific Acts; Vesting Title_______________________
If a judgment directs a party to execute a conveyance of land or to
deliver deeds or other documents or to perform any other specific act
and the party fails to comply within the time specified, the court may
direct the act to be done at the cost of the disobedient party by some
other person appointed by the court and the act when so done has like
effect as if done by the party. On application of the party entitled to
performance, the clerk shall issue a writ of attachment or sequestration
against the property of the disobedient party to compel obedience to the
judgment. The court may also in proper cases adjudge the party in
contempt. If real or personal property is within the district, the court
in lieu of directing a conveyance thereof may enter a judgment divesting
the title of any party and vesting it in others and such judgment has
the effect of a conveyance executed in due form of law. When any order
or judgment is for the delivery of possession, the party in whose favor
it is entered is entitled to a writ of execution or assistance upon
application to the clerk.
Rule 71
Process in Behalf of and Against Persons Not Parties____________
When an order is made in favor of a person who is not a party to the
action, that person may enforce obedience to the order by the same
process as if a party; and, when obedience to an order may be lawfully
enforced against a person who is not a party, that person is liable to
the same process for enforcing obedience to the order as if a party.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)
IX. SPECIAL PROCEEDINGS
Rule 71A
Condemnation of Property________________________________________
(a) Applicability of Other Rules. The Rules of Civil Procedure for
the United States District Courts govern the procedure for the
condemnation of real and personal property under the power of eminent
domain, except as otherwise provided in this rule.
(b) Joinder of Properties. The plaintiff may join in the same action
one or more separate pieces of property, whether in the same or
different ownership and whether or not sought for the same use.
(c) Complaint.
(1) Caption. The complaint shall contain a caption as
provided in Rule 10(a), except that the plaintiff shall name as
defendants the property, designated generally by kind, quantity,
and location, and at least one of the owners of some part of or
interest in the property.
(2) Contents. The complaint shall contain a short and plain
statement of the authority for the taking, the use for which the
property is to be taken, a description of the property
sufficient for its identification, the interests to be acquired,
and as to each separate piece of property a designation of the
defendants who have been joined as owners thereof or of some
interest therein. Upon the commencement of the action, the
plaintiff need join as defendants only the persons having or
claiming an interest in the property whose names are then known,
but prior to any hearing involving the compensation to be paid
for a piece of property, the plaintiff shall add as defendants
all persons having or claiming an interest in that property
whose names can be ascertained by a reasonably diligent search
of the records, considering the character and value of the
property involved and the interests to be acquired, and also
those whose names have otherwise been learned. All others may be
made defendants under the designation ``Unknown Owners.''
Process shall be served as provided in subdivision (d) of this
rule upon all defendants, whether named as defendants at the
time of the commencement of the action or subsequently added,
and a defendant may answer as provided in subdivision (e) of
this rule. The court meanwhile may order such distribution of a
deposit as the facts warrant.
(3) Filing. In addition to filing the complaint with the
court, the plaintiff shall furnish to the clerk at least one
copy thereof for the use of the defendants and additional copies
at the request of the clerk or of a defendant.
(d) Process.
(1) Notice; Delivery. Upon the filing of the complaint the
plaintiff shall forthwith deliver to the clerk joint or several
notices directed to the defendants named or designated in the
complaint. Additional notices directed to defendants
subsequently added shall be so delivered. The delivery of the
notice and its service have the same effect as the delivery and
service of the summons under Rule 4.
(2) Same; Form. Each notice shall state the court, the title
of the action, the name of the defendant to whom it is directed,
that the action is to condemn property, a description of the
defendant's property sufficient for its identification, the
interest to be taken, the authority for the taking, the uses for
which the property is to be taken, that the defendant may serve
upon the plaintiff's attorney an answer within 20 days after
service of the notice, and that the failure so to serve an
answer constitutes a consent to the taking and to the authority
of the court to proceed to hear the action and to fix the
compensation. The notice shall conclude with the name of the
plaintiff's attorney and an address within the district in which
action is brought where the attorney may be served. The notice
need contain a description of no other property than that to be
taken from the defendants to whom it is directed.
(3) Service of Notice.
(A) Personal Service. Personal service of the notice
(but without copies of the complaint) shall be made in
accordance with Rule 4 upon a defendant whose residence
is known and who resides within the United States or a
territory subject to the administrative or judicial
jurisdiction of the United States.
(B) Service by Publication. Upon the filing of a
certificate of the plaintiff's attorney stating that the
attorney believes a defendant cannot be personally
served, because after diligent inquiry within the state
in which the complaint is filed the defendant's place of
residence cannot be ascertained by the plaintiff or, if
ascertained, that it is beyond the territorial limits of
personal service as provided in this rule, service of
the notice shall be made on this defendant by
publication in a newspaper published in the county where
the property is located, or if there is no such
newspaper, then in a newspaper having a general
circulation where the property is located, once a week
for not less than three successive weeks. Prior to the
last publication, a copy of the notice shall also be
mailed to a defendant who cannot be personally served as
provided in this rule but whose place of residence is
then known. Unknown owners may be served by publication
in like manner by a notice addressed to ``Unknown
Owners.''
Service by publication is complete upon the date of
the last publication. Proof of publication and mailing
shall be made by certificate of the plaintiff's
attorney, to which shall be attached a printed copy of
the published notice with the name and dates of the
newspaper marked thereon.
(4) Return; Amendment. Proof of service of the notice shall
be made and amendment of the notice or proof of its service
allowed in the manner provided for the return and amendment of
the summons under Rule 4.
(e) Appearance or Answer. If a defendant has no objection or defense
to the taking of the defendant's property, the defendant may serve a
notice of appearance designating the property in which the defendant
claims to be interested. Thereafter, the defendant shall receive notice
of all proceedings affecting it. If a defendant has any objection or
defense to the taking of the property, the defendant shall serve an
answer within 20 days after the service of notice upon the defendant.
The answer shall identify the property in which the defendant claims to
have an interest, state the nature and extent of the interest claimed,
and state all the defendant's objections and defenses to the taking of
the property. A defendant waives all defenses and objections not so
presented, but at the trial of the issue of just compensation, whether
or not the defendant has previously appeared or answered, the defendant
may present evidence as to the amount of the compensation to be paid for
the property, and the defendant may share in the distribution of the
award. No other pleading or motion asserting any additional defense or
objection shall be allowed.
(f) Amendment of Pleadings. Without leave of court, the plaintiff
may amend the complaint at any time before the trial of the issue of
compensation and as many times as desired, but no amendment shall be
made which will result in a dismissal forbidden by subdivision (i) of
this rule. The plaintiff need not serve a copy of an amendment, but
shall serve notice of the filing, as provided in Rule 5(b), upon any
party affected thereby who has appeared and, in the manner provided in
subdivision (d) of this rule, upon any party affected thereby who has
not appeared. The plaintiff shall furnish to the clerk of the court for
the use of the defendants at least one copy of each amendment and shall
furnish additional copies on the request of the clerk or of a defendant.
Within the time allowed by subdivision (e) of this rule a defendant may
serve an answer to the amended pleading, in the form and manner and with
the same effect as there provided.
(g) Substitution of Parties. If a defendant dies or becomes
incompetent or transfers an interest after the defendant's joinder, the
court may order substitution of the proper party upon motion and notice
of hearing. If the motion and notice of hearing are to be served upon a
person not already a party, service shall be made as provided in
subdivision (d)(3) of this rule.
(h) Trial. If the action involves the exercise of the power of
eminent domain under the law of the United States, any tribunal
specially constituted by an Act of Congress governing the case for the
trial of the issue of just compensation shall be the tribunal for the
determination of that issue; but if there is no such specially
constituted tribunal any party may have a trial by jury of the issue of
just compensation by filing a demand therefor within the time allowed
for answer or within such further time as the court may fix, unless the
court in its discretion orders that, because of the character, location,
or quantity of the property to be condemned, or for other reasons in the
interest of justice, the issue of compensation shall be determined by a
commission of three persons appointed by it.
In the event that a commission is appointed the court may direct
that not more than two additional persons serve as alternate
commissioners to hear the case and replace commissioners who, prior to
the time when a decision is filed, are found by the court to be unable
or disqualified to perform their duties. An alternate who does not
replace a regular commissioner shall be discharged after the commission
renders its final decision. Before appointing the members of the
commission and alternates the court shall advise the parties of the
identity and qualifications of each prospective commissioner and
alternate and may permit the parties to examine each such designee. The
parties shall not be permitted or required by the court to suggest
nominees. Each party shall have the right to object for valid cause to
the appointment of any person as a commissioner or alternate. If a
commission is appointed it shall have the authority of a master provided
in Rule 53(c) and proceedings before it shall be governed by the
provisions of Rule 53(d). Its action and report shall be determined by a
majority and its findings and report shall have the effect, and be dealt
with by the court in accordance with the practice, prescribed in Rule
53(e), (f), and (g). Trial of all issues shall otherwise be by the
court.
(i) Dismissal of Action.
(1) As of Right. If no hearing has begun to determine the
compensation to be paid for a piece of property and the
plaintiff has not acquired the title or a lesser interest in or
taken possession, the plaintiff may dismiss the action as to
that property, without an order of the court, by filing a notice
of dismissal setting forth a brief description of the property
as to which the action is dismissed.
(2) By Stipulation. Before the entry of any judgment vesting
the plaintiff with title or a lesser interest in or possession
of property, the action may be dismissed in whole or in part,
without an order of the court, as to any property by filing a
stipulation of dismissal by the plaintiff and the defendant
affected thereby; and, if the parties so stipulate, the court
may vacate any judgment that has been entered.
(3) By Order of the Court. At any time before compensation
for a piece of property has been determined and paid and after
motion and hearing, the court may dismiss the action as to that
property, except that it shall not dismiss the action as to any
part of the property of which the plaintiff has taken possession
or in which the plaintiff has taken title or a lesser interest,
but shall award just compensation for the possession, title or
lesser interest so taken. The court at any time may drop a
defendant unnecessarily or improperly joined.
(4) Effect. Except as otherwise provided in the notice, or
stipulation of dismissal, or order of the court, any dismissal
is without prejudice.
(j) Deposit and Its Distribution. The plaintiff shall deposit with
the court any money required by law as a condition to the exercise of
the power of eminent domain; and, although not so required, may make a
deposit when permitted by statute. In such cases the court and attorneys
shall expedite the proceedings for the distribution of the money so
deposited and for the ascertainment and payment of just compensation. If
the compensation finally awarded to any defendant exceeds the amount
which has been paid to that defendant on distribution of the deposit,
the court shall enter judgment against the plaintiff and in favor of
that defendant for the deficiency. If the compensation finally awarded
to any defendant is less than the amount which has been paid to that
defendant, the court shall enter judgment against that defendant and in
favor of the plaintiff for the overpayment.
(k) Condemnation Under a State's Power of Eminent Domain. The
practice as herein prescribed governs in actions involving the exercise
of the power of eminent domain under the law of a state, provided that
if the state law makes provision for trial of any issue by jury, or for
trial of the issue of compensation by jury or commission or both, that
provision shall be followed.
(l) Costs. Costs are not subject to Rule 54(d).
(As added Apr. 30, 1951, eff. Aug. 1, 1951; amended Jan. 21, 1963, eff.
July 1, 1963; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Nov. 18, 1988; Apr. 22, 1993,
eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1, 2003.)
Rule 72
Magistrate Judges; Pretrial Orders______________________________
(a) Nondispositive Matters. A magistrate judge to whom a pretrial
matter not dispositive of a claim or defense of a party is referred to
hear and determine shall promptly conduct such proceedings as are
required and when appropriate enter into the record a written order
setting forth the disposition of the matter. Within 10 days after being
served with a copy of the magistrate judge's order, a party may serve
and file objections to the order; a party may not thereafter assign as
error a defect in the magistrate judge's order to which objection was
not timely made. The district judge to whom the case is assigned shall
consider such objections and shall modify or set aside any portion of
the magistrate judge's order found to be clearly erroneous or contrary
to law.
(b) Dispositive Motions and Prisoner Petitions. A magistrate judge
assigned without consent of the parties to hear a pretrial matter
dispositive of a claim or defense of a party or a prisoner petition
challenging the conditions of confinement shall promptly conduct such
proceedings as are required. A record shall be made of all evidentiary
proceedings before the magistrate judge, and a record may be made of
such other proceedings as the magistrate judge deems necessary. The
magistrate judge shall enter into the record a recommendation for
disposition of the matter, including proposed findings of fact when
appropriate. The clerk shall forthwith mail copies to all parties.
A party objecting to the recommended disposition of the matter shall
promptly arrange for the transcription of the record, or portions of it
as all parties may agree upon or the magistrate judge deems sufficient,
unless the district judge otherwise directs. Within 10 days after being
served with a copy of the recommended disposition, a party may serve and
file specific, written objections to the proposed findings and
recommendations. A party may respond to another party's objections
within 10 days after being served with a copy thereof. The district
judge to whom the case is assigned shall make a de novo determination
upon the record, or after additional evidence, of any portion of the
magistrate judge's disposition to which specific written objection has
been made in accordance with this rule. The district judge may accept,
reject, or modify the recommended decision, receive further evidence, or
recommit the matter to the magistrate judge with instructions.
(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Apr. 30, 1991, eff.
Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993.)
Rule 73
Magistrate Judges; Trial by Consent and Appeal__________________
(a) Powers; Procedure. When specially designated to exercise such
jurisdiction by local rule or order of the district court and when all
parties consent thereto, a magistrate judge may exercise the authority
provided by Title 28, U.S.C. Sec. 636(c) and may conduct any or all
proceedings, including a jury or nonjury trial, in a civil case. A
record of the proceedings shall be made in accordance with the
requirements of Title 28, U.S.C. Sec. 636(c)(5).
(b) Consent. When a magistrate judge has been designated to exercise
civil trial jurisdiction, the clerk shall give written notice to the
parties of their opportunity to consent to the exercise by a magistrate
judge of civil jurisdiction over the case, as authorized by Title 28,
U.S.C. Sec. 636(c). If, within the period specified by local rule, the
parties agree to a magistrate judge's exercise of such authority, they
shall execute and file a joint form of consent or separate forms of
consent setting forth such election.
A district judge, magistrate judge, or other court official may
again advise the parties of the availability of the magistrate judge,
but, in so doing, shall also advise the parties that they are free to
withhold consent without adverse substantive consequences. A district
judge or magistrate judge shall not be informed of a party's response to
the clerk's notification, unless all parties have consented to the
referral of the matter to a magistrate judge.
The district judge, for good cause shown on the judge's own
initiative, or under extraordinary circumstances shown by a party, may
vacate a reference of a civil matter to a magistrate judge under this
subdivision.
(c) Appeal. In accordance with Title 28, U.S.C. Sec. 636(c)(3),
appeal from a judgment entered upon direction of a magistrate judge in
proceedings under this rule will lie to the court of appeals as it would
from a judgment of the district court.
[(d) Optional Appeal Route.] (Abrogated Apr. 11, 1997, eff. Dec. 1,
1997)
(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec.
1, 1997.)
Rule 74
[Rule 74
Method of Appeal From Magistrate Judge to District Judge Under
Title 28, U.S.C. Sec. 636(c)(4) and Rule 73(d)] (Abrogated Apr. 11,
1997, eff. Dec. 1, 1997)________________________________________________
[Rule 75
Proceedings on Appeal From Magistrate Judge to District Judge
Under Rule 73(d)] (Abrogated Apr. 11, 1997, eff. Dec. 1, 1997)__________
[Rule 76
Judgment of the District Judge on the Appeal Under Rule 73(d)
and Costs] (Abrogated Apr. 11, 1997, eff. Dec. 1, 1997)_________________
X. DISTRICT COURTS AND CLERKS
Rule 77
District Courts and Clerks______________________________________
(a) District Courts Always Open. The district courts shall be deemed
always open for the purpose of filing any pleading or other proper
paper, of issuing and returning mesne and final process, and of making
and directing all interlocutory motions, orders, and rules.
(b) Trials and Hearings; Orders in Chambers. All trials upon the
merits shall be conducted in open court and so far as convenient in a
regular court room. All other acts or proceedings may be done or
conducted by a judge in chambers, without the attendance of the clerk or
other court officials and at any place either within or without the
district; but no hearing, other than one ex parte, shall be conducted
outside the district without the consent of all parties affected
thereby.
(c) Clerk's Office and Orders by Clerk. The clerk's office with the
clerk or a deputy in attendance shall be open during business hours on
all days except Saturdays, Sundays, and legal holidays, but a district
court may provide by local rule or order that its clerk's office shall
be open for specified hours on Saturdays or particular legal holidays
other than New Year's Day, Birthday of Martin Luther King, Jr.,
Washington's Birthday, Memorial Day, Independence Day, Labor Day,
Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day. All
motions and applications in the clerk's office for issuing mesne
process, for issuing final process to enforce and execute judgments, for
entering defaults or judgments by default, and for other proceedings
which do not require allowance or order of the court are grantable of
course by the clerk; but the clerk's action may be suspended or altered
or rescinded by the court upon cause shown.
(d) Notice of Orders or Judgments. Immediately upon the entry of an
order or judgment the clerk shall serve a notice of the entry in the
manner provided for in Rule 5(b) upon each party who is not in default
for failure to appear, and shall make a note in the docket of the
service. Any party may in addition serve a notice of such entry in the
manner provided in Rule 5(b) for the service of papers. Lack of notice
of the entry by the clerk does not affect the time to appeal or relieve
or authorize the court to relieve a party for failure to appeal within
the time allowed, except as permitted in Rule 4(a) of the Federal Rules
of Appellate Procedure.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1,
1971; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991;
Apr. 23, 2001, eff. Dec. 1, 2001.)
Rule 78
Motion Day______________________________________________________
Unless local conditions make it impracticable, each district court
shall establish regular times and places, at intervals sufficiently
frequent for the prompt dispatch of business, at which motions requiring
notice and hearing may be heard and disposed of; but the judge at any
time or place and on such notice, if any, as the judge considers
reasonable may make orders for the advancement, conduct, and hearing of
actions.
To expedite its business, the court may make provision by rule or
order for the submission and determination of motions without oral
hearing upon brief written statements of reasons in support and
opposition.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)
Rule 79
Books and Records Kept by the Clerk and Entries Therein_________
(a) Civil Docket. The clerk shall keep a book known as ``civil
docket'' of such form and style as may be prescribed by the Director of
the Administrative Office of the United States Courts with the approval
of the Judicial Conference of the United States, and shall enter therein
each civil action to which these rules are made applicable. Actions
shall be assigned consecutive file numbers. The file number of each
action shall be noted on the folio of the docket whereon the first entry
of the action is made. All papers filed with the clerk, all process
issued and returns made thereon, all appearances, orders, verdicts, and
judgments shall be entered chronologically in the civil docket on the
folio assigned to the action and shall be marked with its file number.
These entries shall be brief but shall show the nature of each paper
filed or writ issued and the substance of each order or judgment of the
court and of the returns showing execution of process. The entry of an
order or judgment shall show the date the entry is made. When in an
action trial by jury has been properly demanded or ordered the clerk
shall enter the word ``jury'' on the folio assigned to that action.
(b) Civil Judgments and Orders. The clerk shall keep, in such form
and manner as the Director of the Administrative Office of the United
States Courts with the approval of the Judicial Conference of the United
States may prescribe, a correct copy of every final judgment or
appealable order, or order affecting title to or lien upon real or
personal property, and any other order which the court may direct to be
kept.
(c) Indices; Calendars. Suitable indices of the civil docket and of
every civil judgment and order referred to in subdivision (b) of this
rule shall be kept by the clerk under the direction of the court. There
shall be prepared under the direction of the court calendars of all
actions ready for trial, which shall distinguish ``jury actions'' from
``court actions.''
(d) Other Books and Records of the Clerk. The clerk shall also keep
such other books and records as may be required from time to time by the
Director of the Administrative Office of the United States Courts with
the approval of the Judicial Conference of the United States.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Jan. 21, 1963, eff. July 1, 1963.)
Rule 80
Stenographer; Stenographic Report or Transcript as Evidence_____
[(a) Stenographer.] (Abrogated Dec. 27, 1946, eff. Mar. 19, 1948)
[(b) Official Stenographer.] (Abrogated Dec. 27, 1946, eff. Mar. 19,
1948)
(c) Stenographic Report or Transcript as Evidence. Whenever the
testimony of a witness at a trial or hearing which was stenographically
reported is admissible in evidence at a later trial, it may be proved by
the transcript thereof duly certified by the person who reported the
testimony.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948.)
XI. GENERAL PROVISIONS
Rule 81
Applicability in General________________________________________
(a) To What Proceedings Applicable.
(1) These rules do not apply to prize proceedings in
admiralty governed by Title 10, U.S.C., Sec. Sec. 7651-7681.
They do apply to proceedings in bankruptcy to the extent
provided by the Federal Rules of Bankruptcy Procedure.
(2) These rules are applicable to proceedings for admission
to citizenship, habeas corpus, and quo warranto, to the extent
that the practice in such proceedings is not set forth in
statutes of the United States, the Rules Governing Section 2254
Cases, or the Rules Governing Section 2255 Proceedings, and has
heretofore conformed to the practice in civil actions.
(3) In proceedings under Title 9, U.S.C., relating to
arbitration, or under the Act of May 20, 1926, ch. 347, Sec. 9
(44 Stat. 585), U.S.C., Title 45, Sec. 159, relating to boards
of arbitration of railway labor disputes, these rules apply only
to the extent that matters of procedure are not provided for in
those statutes. These rules apply to proceedings to compel the
giving of testimony or production of documents in accordance
with a subpoena issued by an officer or agency of the United
States under any statute of the United States except as
otherwise provided by statute or by rules of the district court
or by order of the court in the proceedings.
(4) These rules do not alter the method prescribed by the
Act of February 18, 1922, ch. 57, Sec. 2 (42 Stat. 388), U.S.C.,
Title 7, Sec. 292; or by the Act of June 10, 1930, ch. 436,
Sec. 7 (46 Stat. 534), as amended, U.S.C., Title 7,
Sec. 499g(c), for instituting proceedings in the United States
district courts to review orders of the Secretary of
Agriculture; or prescribed by the Act of June 25, 1934, ch. 742,
Sec. 2 (48 Stat. 1214), U.S.C., Title 15, Sec. 522, for
instituting proceedings to review orders of the Secretary of the
Interior; or prescribed by the Act of February 22, 1935, ch. 18,
Sec. 5 (49 Stat. 31), U.S.C., Title 15, Sec. 715d(c), as
extended, for instituting proceedings to review orders of
petroleum control boards; but the conduct of such proceedings in
the district courts shall be made to conform to these rules so
far as applicable.
(5) These rules do not alter the practice in the United
States district courts prescribed in the Act of July 5, 1935,
ch. 372, Sec. Sec. 9 and 10 (49 Stat. 453), as amended, U.S.C.,
Title 29, Sec. Sec. 159 and 160, for beginning and conducting
proceedings to enforce orders of the National Labor Relations
Board; and in respects not covered by those statutes, the
practice in the district courts shall conform to these rules so
far as applicable.
(6) These rules apply to proceedings for enforcement or
review of compensation orders under the Longshoremen's and
Harbor Workers' Compensation Act, Act of March 4, 1927, c. 509,
Sec. Sec. 18, 21 (44 Stat. 1434, 1436), as amended, U.S.C.,
Title 33, Sec. Sec. 918, 921, except to the extent that matters
of procedure are provided for in that Act. The provisions for
service by publication and for answer in proceedings to cancel
certificates of citizenship under the Act of June 27, 1952, c.
477, Title III, c. 2, Sec. 340 (66 Stat. 260), U.S.C., Title 8,
Sec. 1451, remain in effect.
[(7)] (Abrogated Apr. 30, 1951, eff. Aug. 1, 1951)
(b) Scire Facias and Mandamus. The writs of scire facias and
mandamus are abolished. Relief heretofore available by mandamus or scire
facias may be obtained by appropriate action or by appropriate motion
under the practice prescribed in these rules.
(c) Removed Actions. These rules apply to civil actions removed to
the United States district courts from the state courts and govern
procedure after removal. Repleading is not necessary unless the court so
orders. In a removed action in which the defendant has not answered, the
defendant shall answer or present the other defenses or objections
available under these rules within 20 days after the receipt through
service or otherwise of a copy of the initial pleading setting forth the
claim for relief upon which the action or proceeding is based, or within
20 days after the service of summons upon such initial pleading, then
filed, or within 5 days after the filing of the petition for removal,
whichever period is longest. If at the time of removal all necessary
pleadings have been served, a party entitled to trial by jury under Rule
38 shall be accorded it, if the party's demand therefor is served within
10 days after the petition for removal is filed if the party is the
petitioner, or if not the petitioner within 10 days after service on the
party of the notice of filing the petition. A party who, prior to
removal, has made an express demand for trial by jury in accordance with
state law, need not make a demand after removal. If state law applicable
in the court from which the case is removed does not require the parties
to make express demands in order to claim trial by jury, they need not
make demands after removal unless the court directs that they do so
within a specified time if they desire to claim trial by jury. The court
may make this direction on its own motion and shall do so as a matter of
course at the request of any party. The failure of a party to make
demand as directed constitutes a waiver by that party of trial by jury.
[(d) District of Columbia; Courts and Judges.] (Abrogated Dec. 29,
1948, eff. Oct. 20, 1949)
(e) Law Applicable. Whenever in these rules the law of the state in
which the district court is held is made applicable, the law applied in
the District of Columbia governs proceedings in the United States
District Court for the District of Columbia. When the word ``state'' is
used, it includes, if appropriate, the District of Columbia. When the
term ``statute of the United States'' is used, it includes, so far as
concerns proceedings in the United States District Court for the
District of Columbia, any Act of Congress locally applicable to and in
force in the District of Columbia. When the law of a state is referred
to, the word ``law'' includes the statutes of that state and the state
judicial decisions construing them.
(f) References to Officer of the United States. Under any rule in
which reference is made to an officer or agency of the United States,
the term ``officer'' includes a district director of internal revenue, a
former district director or collector of internal revenue, or the
personal representative of a deceased district director or collector of
internal revenue.
(As amended Dec. 28, 1939, eff. Apr. 3, 1941; Dec. 27, 1946, eff. Mar.
19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 30, 1951, eff. Aug. 1,
1951; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1,
1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971;
Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 23, 2001, eff. Dec. 1, 2001; Apr.
29, 2002, eff. Dec. 1, 2002.)
Rule 82
Jurisdiction and Venue Unaffected_______________________________
These rules shall not be construed to extend or limit the
jurisdiction of the United States district courts or the venue of
actions therein. An admiralty or maritime claim within the meaning of
Rule 9(h) shall not be treated as a civil action for the purposes of
Title 28, U.S.C., Sec. Sec. 1391-1392.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July
1, 1966; Apr. 23, 2001, eff. Dec. 1, 2001.)
Rule 83
Rules by District Courts; Judge's Directives____________________
(a) Local Rules.
(1) Each district court, acting by a majority of its
district judges, may, after giving appropriate public notice and
an opportunity for comment, make and amend rules governing its
practice. A local rule shall be consistent with--but not
duplicative of--Acts of Congress and rules adopted under 28
U.S.C. Sec. Sec. 2072 and 2075, and shall conform to any uniform
numbering system prescribed by the Judicial Conference of the
United States. A local rule takes effect on the date specified
by the district court and remains in effect unless amended by
the court or abrogated by the judicial council of the circuit.
Copies of rules and amendments shall, upon their promulgation,
be furnished to the judicial council and the Administrative
Office of the United States Courts and be made available to the
public.
(2) A local rule imposing a requirement of form shall not be
enforced in a manner that causes a party to lose rights because
of a nonwillful failure to comply with the requirement.
(b) Procedures When There is No Controlling Law. A judge may
regulate practice in any manner consistent with federal law, rules
adopted under 28 U.S.C. Sec. Sec. 2072 and 2075, and local rules of the
district. No sanction or other disadvantage may be imposed for
noncompliance with any requirement not in federal law, federal rules, or
the local district rules unless the alleged violator has been furnished
in the particular case with actual notice of the requirement.
(As amended Apr. 29, 1985, eff. Aug. 1, 1985; Apr. 27, 1995, eff. Dec.
1, 1995.)
Rule 84
Forms___________________________________________________________
The forms contained in the Appendix of Forms are sufficient under
the rules and are intended to indicate the simplicity and brevity of
statement which the rules contemplate.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948.)
Rule 85
Title___________________________________________________________
These rules may be known and cited as the Federal Rules of Civil
Procedure.
Rule 86
Effective Date__________________________________________________
(a) \1\ [Effective Date of Original Rules.] These rules will take
effect on the day which is 3 months subsequent to the adjournment of the
second regular session of the 75th Congress, but if that day is prior to
September 1, 1938, then these rules will take effect on September 1,
1938. They govern all proceedings in actions brought after they take
effect and also all further proceedings in actions then pending, except
to the extent that in the opinion of the court their application in a
particular action pending when the rules take effect would not be
feasible or would work injustice, in which event the former procedure
applies.
---------------------------------------------------------------------------
\1\ Subdivision heading supplied editorially.
---------------------------------------------------------------------------
(b) Effective Date of Amendments. The amendments adopted by the
Supreme Court on December 27, 1946, and transmitted to the Attorney
General on January 2, 1947, shall take effect on the day which is three
months subsequent to the adjournment of the first regular session of the
80th Congress, but, if that day is prior to September 1, 1947, then
these amendments shall take effect on September 1, 1947. They govern all
proceedings in actions brought after they take effect and also all
further proceedings in actions then pending, except to the extent that
in the opinion of the court their application in a particular action
pending when the amendments take effect would not be feasible or would
work injustice, in which event the former procedure applies.
(c) Effective Date of Amendments. The amendments adopted by the
Supreme Court on December 29, 1948, and transmitted to the Attorney
General on December 31, 1948, shall take effect on the day following the
adjournment of the first regular session of the 81st Congress.
(d) Effective Date of Amendments. The amendments adopted by the
Supreme Court on April 17, 1961, and transmitted to the Congress on
April 18, 1961, shall take effect on July 19, 1961. They govern all
proceedings in actions brought after they take effect and also all
further proceedings in actions then pending, except to the extent that
in the opinion of the court their application in a particular action
pending when the amendments take effect would not be feasible or would
work injustice, in which event the former procedure applies.
(e) Effective Date of Amendments. The amendments adopted by the
Supreme Court on January 21, 1963, and transmitted to the Congress on
January 21, 1963, shall take effect on July 1, 1963. They govern all
proceedings in actions brought after they take effect and also all
further proceedings in actions then pending, except to the extent that
in the opinion of the court their application in a particular action
pending when the amendments take effect would not be feasible or would
work injustice, in which event the former procedure applies.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Apr. 17, 1961, eff. July 19, 1961; Jan. 21 and Mar. 18, 1963,
eff. July 1, 1963.)
FEDERAL RULES OF CIVIL PROCEDURE
APPENDIX OF FORMS
(See Rule 84)
Introductory Statement
1. The following forms are intended for illustration only. They are
limited in number. No attempt is made to furnish a manual of forms. Each
form assumes the action to be brought in the Southern District of New
York. If the district in which an action is brought has divisions, the
division should be indicated in the caption.
2. Except where otherwise indicated each pleading, motion, and other
paper should have a caption similar to that of the summons, with the
designation of the particular paper substituted for the word
``Summons''. In the caption of the summons and in the caption of the
complaint all parties must be named but in other pleadings and papers,
it is sufficient to state the name of the first party on either side,
with an appropriate indication of other parties. See Rules 4(b) [now
(a)], 7(b)(2), and 10(a).
3. In Form 3 and the forms following, the words, ``Allegation of
jurisdiction,'' are used to indicate the appropriate allegation in Form
2.
4. Each pleading, motion, and other paper is to be signed in his
individual name by at least one attorney of record (Rule 11). The
attorney's name is to be followed by his address as indicated in Form 3.
In forms following Form 3 the signature and address are not indicated.
5. If a party is not represented by an attorney, the signature and
address of the party are required in place of those of the attorney.
Form 1
Summons_________________________________________________________
United States District Court for the Southern
District of New York
Civil Action, File Number ____
A. B., Plaintiff
v.
<5-ln }>
Summons
C. D., Defendant
To the above-named Defendant:
You are hereby summoned and required to serve upon _____,
plaintiff's attorney, whose address is ________, an answer to the
complaint which is herewith served upon you, within 20 \1\ days after
service of this summons upon you, exclusive of the day of service. If
you fail to do so, judgment by default will be taken against you for the
relief demanded in the complaint.
___________,
Clerk of Court.
[Seal of the U.S. District Court]
Dated ____________
(This summons is issued pursuant to Rule 4 of the Federal Rules of
Civil Procedure)
\1\ If the United States or an officer or agency thereof is a
defendant, the time to be inserted as to it is 60 days.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949.)
Form 1A
Notice of Lawsuit and Request for Waiver of Service of Summons__
TO: ______(A)______ [as ______(B)______ of ______(C)______]
A lawsuit has been commenced against you (or the entity on whose
behalf you are addressed). A copy of the complaint is attached to this
notice. It has been filed in the United States District Court for the
______(D)______ and has been assigned docket number ______(E)______.
This is not a formal summons or notification from the court, but
rather my request that you sign and return the enclosed waiver of
service in order to save the cost of serving you with a judicial summons
and an additional copy of the complaint. The cost of service will be
avoided if I receive a signed copy of the waiver within ______(F)______
days after the date designated below as the date on which this Notice
and Request is sent. I enclose a stamped and addressed envelope (or
other means of cost-free return) for your use. An extra copy of the
waiver is also attached for your records.
If you comply with this request and return the signed waiver, it
will be filed with the court and no summons will be served on you. The
action will then proceed as if you had been served on the date the
waiver is filed, except that you will not be obligated to answer the
complaint before 60 days from the date designated below as the date on
which this notice is sent (or before 90 days from that date if your
address is not in any judicial district of the United States).
If you do not return the signed waiver within the time indicated, I
will take appropriate steps to effect formal service in a manner
authorized by the Federal Rules of Civil Procedure and will then, to the
extent authorized by those Rules, ask the court to require you (or the
party on whose behalf you are addressed) to pay the full costs of such
service. In that connection, please read the statement concerning the
duty of parties to waive the service of the summons, which is set forth
on the reverse side (or at the foot) of the waiver form.
I affirm that this request is being sent to you on behalf of the
plaintiff, this __ day of ____, __.
________________________
Signature of Plaintiff's Attorney or
Unrepresented Plaintiff
Notes
A--Name of individual defendant (or name of officer or agent of
corporate defendant)
B--Title, or other relationship of individual to corporate defendant
C--Name of corporate defendant, if any
D--District
E--Docket number of action
F--Addressee must be given at least 30 days (60 days if located in
foreign country) in which to return waiver
(As added Apr. 22, 1993, eff. Dec. 1, 1993.)
Form 1B
Waiver of Service of Summons____________________________________
TO: ___(name of plaintiff's attorney or unrepresented plaintiff)___
I acknowledge receipt of your request that I waive service of a
summons in the action of ____(caption of action)____, which is case
number ____(docket number)____ in the United States District Court for
the ____(district)____. I have also received a copy of the complaint in
the action, two copies of this instrument, and a means by which I can
return the signed waiver to you without cost to me.
I agree to save the cost of service of a summons and an additional
copy of the complaint in this lawsuit by not requiring that I (or the
entity on whose behalf I am acting) be served with judicial process in
the manner provided by Rule 4.
I (or the entity on whose behalf I am acting) will retain all
defenses or objections to the lawsuit or to the jurisdiction or venue of
the court except for objections based on a defect in the summons or in
the service of the summons.
I understand that a judgment may be entered against me (or the party
on whose behalf I am acting) if an answer or motion under Rule 12 is not
served upon you within 60 days after ____(date request was sent)____, or
within 90 days after that date if the request was sent outside the
United States.
______ _______________
Date Signature
Printed/typed name: ________________
[as ____________________]
[of ____________________]
To be printed on reverse side of the waiver form or set forth at the
foot of the form:
Duty to Avoid Unnecessary Costs of Service of Summons
Rule 4 of the Federal Rules of Civil Procedure requires certain
parties to cooperate in saving unnecessary costs of service of the
summons and complaint. A defendant located in the United States who,
after being notified of an action and asked by a plaintiff located in
the United States to waive service of a summons, fails to do so will be
required to bear the cost of such service unless good cause be shown for
its failure to sign and return the waiver.
It is not good cause for a failure to waive service that a party
believes that the complaint is unfounded, or that the action has been
brought in an improper place or in a court that lacks jurisdiction over
the subject matter of the action or over its person or property. A party
who waives service of the summons retains all defenses and objections
(except any relating to the summons or to the service of the summons),
and may later object to the jurisdiction of the court or to the place
where the action has been brought.
A defendant who waives service must within the time specified on the
waiver form serve on the plaintiff's attorney (or unrepresented
plaintiff) a response to the complaint and must also file a signed copy
of the response with the court. If the answer or motion is not served
within this time, a default judgment may be taken against that
defendant. By waiving service, a defendant is allowed more time to
answer than if the summons had been actually served when the request for
waiver of service was received.
(As added Apr. 22, 1993, eff. Dec. 1, 1993.)
Form 2
Allegation of Jurisdiction______________________________________
(a) Jurisdiction founded on diversity of citizenship and amount.
Plaintiff is a [citizen of the State of Connecticut] \1\
[corporation incorporated under the laws of the State of Connecticut
having its principal place of business in the State of Connecticut] and
defendant is a corporation incorporated under the laws of the State of
New York having its principal place of business in a State other than
the State of Connecticut. The matter in controversy exceeds, exclusive
of interest and costs, the sum specified by 28 U.S.C. Sec. 1332.
(b) Jurisdiction founded on the existence of a Federal question.
The action arises under [the Constitution of the United States,
Article _, Section _]; [the _ Amendment to the Constitution of the
United States, Section _]; [the Act of _, _ Stat. _; U.S.C., Title _,
Sec. _]; [the Treaty of the United States (here describe the treaty)]
\2\ as hereinafter more fully appears.
(c) Jurisdiction founded on the existence of a question arising
under particular statutes.
The action arises under the Act of _, _ Stat. _; U.S.C., Title _,
Sec. _, as hereinafter more fully appears.
(d) Jurisdiction founded on the admiralty or maritime character of
the claim.
This is a case of admiralty and maritime jurisdiction, as
hereinafter more fully appears. [If the pleader wishes to invoke the
distinctively maritime procedures referred to in Rule 9(h), add the
following or its substantial equivalent: This is an admiralty or
maritime claim within the meaning of Rule 9(h).]
\1\ Form for natural person.
\2\ Use the appropriate phrase or phrases. The general allegation of
the existence of a Federal question is ineffective unless the matters
constituting the claim for relief as set forth in the complaint raise a
Federal question.
Explanatory Notes
1. Diversity of Citizenship. U.S.C., Title 28, Sec. 1332 (Diversity
of citizenship; amount in controversy; costs), as amended by P.L. 85-
554, 72 Stat. 415, July 25, 1958, states in subsection (c) that ``For
the purposes of this section and section 1441 of this title [removable
actions], a corporation shall be deemed a citizen of any State by which
it has been incorporated and of the State where it has its principal
place of business.'' Thus if the defendant corporation in Form 2(a) had
its principal place of business in Connecticut, diversity of citizenship
would not exist. An allegation regarding the principal place of business
of each corporate party must be made in addition to an allegation
regarding its place of incorporation.
2. Jurisdictional Amount. U.S.C., Title 28, Sec. 1331 (Federal
question; amount in controversy; costs) and Sec. 1332 (Diversity of
citizenship; amount in controversy; costs), as amended by P.L. 85-554,
72 Stat. 415, July 25, 1958, require that the amount in controversy,
exclusive of interest and costs, be in excess of $10,000. The allegation
as to the amount in controversy may be omitted in any case where by law
no jurisdictional amount is required. See, for example, U.S.C., Title
28, Sec. 1338 (Patents, copyrights, trade-marks, and unfair
competition), Sec. 1343 (Civil rights and elective franchise).
3. Pleading Venue. Since improper venue is a matter of defense, it
is not necessary for plaintiff to include allegations showing the venue
to be proper. See 1 Moore's Federal Practice, par. 0.140 [1.--4] (2d ed.
1959).
(As amended Apr. 17, 1961, eff. July 19, 1961; Feb. 28, 1966, eff. July
1, 1966; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 26, 1999, eff. Dec. 1,
1999.)
Form 3
Complaint on a Promissory Note__________________________________
1. Allegation of jurisdiction.
2. Defendant on or about June 1, 1935, executed and delivered to
plaintiff a promissory note [in the following words and figures: (here
set out the note verbatim)]; [a copy of which is hereto annexed as
Exhibit A]; [whereby defendant promised to pay to plaintiff or order on
June 1, 1936 the sum of _____ dollars with interest thereon at the rate
of six percent. per annum].
3. Defendant owes to plaintiff the amount of said note and interest.
Wherefore plaintiff demands judgment against defendant for the sum
of _____ dollars, interest, and costs.
Signed: ________________________
Attorney for Plaintiff.
Address: _______________________
Notes
1. The pleader may use the material in one of the three sets of
brackets. His choice will depend upon whether he desires to plead the
document verbatim, or by exhibit, or according to its legal effect.
2. Under the rules free joinder of claims is permitted. See Rules
8(e) and 18. Consequently the claims set forth in each and all of the
following forms may be joined with this complaint or with each other.
Ordinarily each claim should be stated in a separate division of the
complaint, and the divisions should be designated as counts successively
numbered. In particular the rules permit alternative and inconsistent
pleading. See Form 10.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
Form 4
Complaint on an Account_________________________________________
1. Allegation of jurisdiction.
2. Defendant owes plaintiff _____ dollars according to the account
hereto annexed as Exhibit A.
Wherefore (etc. as in Form 3).
(As amended Jan. 21, 1963, eff. July 1, 1963.)
Form 5
Complaint for Goods Sold and Delivered__________________________
1. Allegation of jurisdiction.
2. Defendant owes plaintiff ________ dollars for goods sold and
delivered by plaintiff to defendant between June 1, 1936 and December 1,
1936.
Wherefore (etc. as in Form 3).
Note
This form may be used where the action is for an agreed price or for
the reasonable value of the goods.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
Form 6
Complaint for Money Lent________________________________________
1. Allegation of jurisdiction.
2. Defendant owes plaintiff ___ dollars for money lent by plaintiff
to defendant on June 1, 1936.
Wherefore (etc. as in Form 3).
(As amended Jan. 21, 1963, eff. July 1, 1963.)
Form 7
Complaint for Money Paid by Mistake_____________________________
1. Allegation of jurisdiction.
2. Defendant owes plaintiff ___ dollars for money paid by plaintiff
to defendant by mistake on June 1, 1936, under the following
circumstances: [here state the circumstances with particularity--see
Rule 9(b)].
Wherefore (etc. as in Form 3).
(As amended Jan. 21, 1963, eff. July 1, 1963.)
Form 8
Complaint for Money Had and Received____________________________
1. Allegation of jurisdiction.
2. Defendant owes plaintiff ___ dollars for money had and received
from one G. H. on June 1, 1936, to be paid by defendant to plaintiff.
Wherefore (etc. as in Form 3).
(As amended Jan. 21, 1963, eff. July 1, 1963.)
Form 9
Complaint for Negligence________________________________________
1. Allegation of jurisdiction.
2. On June 1, 1936, in a public highway called Boylston Street in
Boston, Massachusetts, defendant negligently drove a motor vehicle
against plaintiff who was then crossing said highway.
3. As a result plaintiff was thrown down and had his leg broken and
was otherwise injured, was prevented from transacting his business,
suffered great pain of body and mind, and incurred expenses for medical
attention and hospitalization in the sum of one thousand dollars.
Wherefore plaintiff demands judgment against defendant in the sum of
___ dollars and costs.
Note
Since contributory negligence is an affirmative defense, the
complaint need contain no allegation of due care of plaintiff.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
Form 10
Complaint for Negligence Where Plaintiff Is Unable To Determine
Definitely Whether the Person Responsible Is C. D. or E. F. or Whether
Both Are Responsible and Where His Evidence May Justify a Finding of
Wilfulness or of Recklessness or of Negligence__________________________
A. B., Plaintiff
v.
<5-ln >
Complaint
C. D. and E. F., Defendants
1. Allegation of jurisdiction.
2. On June 1, 1936, in a public highway called Boylston Street in
Boston, Massachusetts, defendant C. D. or defendant E. F., or both
defendants C. D. and E. F. wilfully or recklessly or negligently drove
or caused to be driven a motor vehicle against plaintiff who was then
crossing said highway.
3. As a result plaintiff was thrown down and had his leg broken and
was otherwise injured, was prevented from transacting his business,
suffered great pain of body and mind, and incurred expenses for medical
attention and hospitalization in the sum of one thousand dollars.
Wherefore plaintiff demands judgment against C. D. or against E. F.
or against both in the sum of _______ dollars and costs.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
Form 11
Complaint for Conversion________________________________________
1. Allegation of jurisdiction.
2. On or about December 1, 1936, defendant converted to his own use
ten bonds of the _____ Company (here insert brief identification as by
number and issue) of the value of _____ dollars, the property of
plaintiff.
Wherefore plaintiff demands judgment against defendant in the sum of
_____ dollars, interest, and costs.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
Form 12
Complaint for Specific Performance of Contract To Convey Land___
1. Allegation of jurisdiction.
2. On or about December 1, 1936, plaintiff and defendant entered
into an agreement in writing a copy of which is hereto annexed as
Exhibit A.
3. In accord with the provisions of said agreement plaintiff
tendered to defendant the purchase price and requested a conveyance of
the land, but defendant refused to accept the tender and refused to make
the conveyance.
4. Plaintiff now offers to pay the purchase price.
Wherefore plaintiff demands (1) that defendant be required
specifically to perform said agreement, (2) damages in the sum of one
thousand dollars, and (3) that if specific performance is not granted
plaintiff have judgment against defendant in the sum of _____ dollars.
Note
Here, as in Form 3, plaintiff may set forth the contract verbatim in
the complaint or plead it, as indicated, by exhibit, or plead it
according to its legal effect. Furthermore, plaintiff may seek legal or
equitable relief or both even though this was impossible under the
system in operation before these rules.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
Form 13
start here Complaint on Claim for Debt and To Set Aside Fraudulent
Conveyance Under Rule 18(b)_____________________________________________
A. B., Plaintiff
v.
<5-ln }>
Complaint
C. D. and E. F., Defendants
1. Allegation of jurisdiction.
2. Defendant C. D. on or about ___ executed and delivered to
plaintiff a promissory note [in the following words and figures: (here
set out the note verbatim)]; [a copy of which is hereto annexed as
Exhibit A]; [whereby defendant C. D. promised to pay to plaintiff or
order on ___ the sum of five thousand dollars with interest thereon at
the rate of ___ percent. per annum].
3. Defendant C. D. owes to plaintiff the amount of said note and
interest.
4. Defendant C. D. on or about ___ conveyed all his property, real
and personal [or specify and describe] to defendant E. F. for the
purpose of defrauding plaintiff and hindering and delaying the
collection of the indebtedness evidenced by the note above referred to.
Wherefore plaintiff demands:
(1) That plaintiff have judgment against defendant C. D. for ___
dollars and interest; (2) that the aforesaid conveyance to defendant E.
F. be declared void and the judgment herein be declared a lien on said
property; (3) that plaintiff have judgment against the defendants for
costs.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
Form 14
Complaint for Negligence Under Federal Employer's Liability Act_
1. Allegation of jurisdiction.
2. During all the times herein mentioned defendant owned and
operated in interstate commerce a railroad which passed through a tunnel
located at ___ and known as Tunnel No. ___.
3. On or about June 1, 1936, defendant was repairing and enlarging
the tunnel in order to protect interstate trains and passengers and
freight from injury and in order to make the tunnel more conveniently
usable for interstate commerce.
4. In the course of thus repairing and enlarging the tunnel on said
day defendant employed plaintiff as one of its workmen, and negligently
put plaintiff to work in a portion of the tunnel which defendant had
left unprotected and unsupported.
5. By reason of defendant's negligence in thus putting plaintiff to
work in that portion of the tunnel, plaintiff was, while so working
pursuant to defendant's orders, struck and crushed by a rock, which fell
from the unsupported portion of the tunnel, and was (here describe
plaintiff's injuries).
6. Prior to these injuries, plaintiff was a strong, able-bodied man,
capable of earning and actually earning ___ dollars per day. By these
injuries he has been made incapable of any gainful activity, has
suffered great physical and mental pain, and has incurred expense in the
amount of ___ dollars for medicine, medical attendance, and
hospitalization.
Wherefore plaintiff demands judgment against defendant in the sum of
___ dollars and costs.
Form 15
Complaint for Damages Under Merchant Marine Act_________________
1. Allegation of jurisdiction. [If the pleader wishes to invoke the
distinctively maritime procedures referred to in Rule 9(h), add the
following or its substantial equivalent: This is an admiralty or
maritime claim within the meaning of Rule 9(h).]
2. During all the times herein mentioned defendant was the owner of
the steamship ___ and used it in the transportation of freight for hire
by water in interstate and foreign commerce.
3. During the first part of (month and year) at ___ plaintiff
entered the employ of defendant as an able seaman on said steamship
under seamen's articles of customary form for a voyage from ___ ports to
the Orient and return at a wage of ___ dollars per month and found,
which is equal to a wage of ___ dollars per month as a shore worker.
4. On June 1, 1936, said steamship was about ___ days out of the
port of ___ and was being navigated by the master and crew on the return
voyage to ___ ports. (Here describe weather conditions and the condition
of the ship and state as in an ordinary complaint for personal injuries
the negligent conduct of defendant.)
5. By reason of defendant's negligence in thus (brief statement of
defendant's negligent conduct) and the unseaworthiness of said
steamship, plaintiff was (here describe plaintiff's injuries).
6. Prior to these injuries, plaintiff was a strong, able-bodied man,
capable of earning and actually earning ___ dollars per day. By these
injuries he has been made incapable of any gainful activity; has
suffered great physical and mental pain, and has incurred expense in the
amount of ___ dollars for medicine, medical attendance, and
hospitalization.
Wherefore plaintiff demands judgment against defendant in the sum of
___ dollars and costs.
(As amended Feb. 28, 1966, eff. July 1, 1966.)
Form 16
Complaint for Infringement of Patent____________________________
1. Allegation of jurisdiction.
2. On May 16, 1934, United States Letters Patent No. ___ were duly
and legally issued to plaintiff for an invention in an electric motor;
and since that date plaintiff has been and still is the owner of those
Letters Patent.
3. Defendant has for a long time past been and still is infringing
those Letters Patent by making, selling, and using electric motors
embodying the patented invention, and will continue to do so unless
enjoined by this court.
4. Plaintiff has placed the required statutory notice on all
electric motors manufactured and sold by him under said Letters Patent,
and has given written notice to defendant of his said infringement.
Wherefore plaintiff demands a preliminary and final injunction
against continued infringement, an accounting for damages, and an
assessment of interest and costs against defendant.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
Form 17
Complaint for Infringement of Copyright and Unfair Competition__
1. Allegation of jurisdiction.
2. Prior to March, 1936, plaintiff, who then was and ever since has
been a citizen of the United States, created and wrote an original book,
entitled __________.
3. This book contains a large amount of material wholly original
with plaintiff and is copyrightable subject matter under the laws of the
United States.
4. Between March 2, 1936, and March 10, 1936, plaintiff complied in
all respects with the Act of (give citation) and all other laws
governing copyright, and secured the exclusive rights and privileges in
and to the copyright of said book, and received from the Register of
Copyrights a certificate of registration, dated and identified as
follows: ``March 10, 1936, Class ______, No. ______.''
5. Since March 10, 1936, said book has been published by plaintiff
and all copies of it made by plaintiff or under his authority or license
have been printed, bound, and published in strict conformity with the
provisions of the Act of __________ and all other laws governing
copyright.
6. Since March 10, 1936, plaintiff has been and still is the sole
proprietor of all rights, title, and interest in and to the copyright in
said book.
7. After March 10, 1936, defendant infringed said copyright by
publishing and placing upon the market a book entitled ______
___________, which was copied largely from plaintiff's copyrighted book,
entitled __________.
8. A copy of plaintiff's copyrighted book is hereto attached as
``Exhibit 1''; and a copy of defendant's infringing book is hereto
attached as ``Exhibit 2.''
9. Plaintiff has notified defendant that defendant has infringed the
copyright of plaintiff, and defendant has continued to infringe the
copyright.
10. After March 10, 1936, and continuously since about _____ ______,
defendant has been publishing, selling and otherwise marketing the book
entitled __________, and has thereby been engaging in unfair trade
practices and unfair competition against plaintiff to plaintiff's
irreparable damage.
Wherefore plaintiff demands:
(1) That defendant, his agents, and servants be enjoined during the
pendency of this action and permanently from infringing said copyright
of said plaintiff in any manner, and from publishing, selling, marketing
or otherwise disposing of any copies of the book entitled __________.
(2) That defendant be required to pay to plaintiff such damages as
plaintiff has sustained in consequence of defendant's infringement of
said copyright and said unfair trade practices and unfair competition
and to account for
(a) all gains, profits and advantages derived by defendant by said
trade practices and unfair competition and
(b) all gains, profits, and advantages derived by defendant by his
infringement of plaintiff's copyright or such damages as to the court
shall appear proper within the provisions of the copyright statutes, but
not less than two hundred and fifty dollars.
(3) That defendant be required to deliver up to be impounded during
the pendency of this action all copies of said book entitled __________
in his possession or under his control and to deliver up for destruction
all infringing copies and all plates, molds, and other matter for making
such infringing copies.
(4) That defendant pay to plaintiff the costs of this action and
reasonable attorney's fees to be allowed to the plaintiff by the court.
(5) That plaintiff have such other and further relief as is just.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948.)
Form 18
Complaint for Interpleader and Declaratory Relief_______________
1. Allegation of jurisdiction.
2. On or about June 1, 1935, plaintiff issued to G. H. a policy of
life insurance whereby plaintiff promised to pay to K. L. as beneficiary
the sum of ______________ dollars upon the death of G. H. The policy
required the payment by G. H. of a stipulated premium on June 1, 1936,
and annually thereafter as a condition precedent to its continuance in
force.
3. No part of the premium due June 1, 1936, was ever paid and the
policy ceased to have any force or effect on July 1, 1936.
4. Thereafter, on September 1, 1936, G. H. and K. L. died as the
result of a collision between a locomotive and the automobile in which
G. H. and K. L. were riding.
5. Defendant C. D. is the duly appointed and acting executor of the
will of G. H.; defendant E. F. is the duly appointed and acting executor
of the will of K. L.; defendant X. Y. claims to have been duly
designated as beneficiary of said policy in place of K. L.
6. Each of defendants, C. D., E. F., and X. Y. is claiming that the
above-mentioned policy was in full force and effect at the time of the
death of G. H.; each of them is claiming to be the only person entitled
to receive payment of the amount of the policy and has made demand for
payment thereof.
7. By reason of these conflicting claims of the defendants,
plaintiff is in great doubt as to which defendant is entitled to be paid
the amount of the policy, if it was in force at the death of G. H.
Wherefore plaintiff demands that the court adjudge:
(1) That none of the defendants is entitled to recover from
plaintiff the amount of said policy or any part thereof.
(2) That each of the defendants be restrained from instituting any
action against plaintiff for the recovery of the amount of said policy
or any part thereof.
(3) That, if the court shall determine that said policy was in force
at the death of G. H., the defendants be required to interplead and
settle between themselves their rights to the money due under said
policy, and that plaintiff be discharged from all liability in the
premises except to the person whom the court shall adjudge entitled to
the amount of said policy.
(4) That plaintiff recover its costs.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
[Form 18-A
Notice and Acknowledgment for Service by Mail] (Abrogated Apr.
22, 1993, eff. Dec. 1, 1993.)___________________________________________
Form 19
Motion To Dismiss, Presenting Defenses of Failure To State a
Claim, of Lack of Service of Process, of Improper Venue, and of Lack of
Jurisdiction Under Rule 12(b)___________________________________________
The defendant moves the court as follows:
1. To dismiss the action because the complaint fails to state a
claim against defendant upon which relief can be granted.
2. To dismiss the action or in lieu thereof to quash the return of
service of summons on the grounds (a) that the defendant is a
corporation organized under the laws of Delaware and was not and is not
subject to service of process within the Southern District of New York,
and (b) that the defendant has not been properly served with process in
this action, all of which more clearly appears in the affidavits of M.
N. and X. Y. hereto annexed as Exhibit A and Exhibit B respectively.
3. To dismiss the action on the ground that it is in the wrong
district because (a) the jurisdiction of this court is invoked solely on
the ground that the action arises under the Constitution and laws of the
United States and (b) the defendant is a corporation incorporated under
the laws of the State of Delaware and is not licensed to do or doing
business in the Southern District of New York, all of which more clearly
appears in the affidavits of K. L. and V. W. hereto annexed as Exhibits
C and D, respectively.
4. To dismiss the action on the ground that the court lacks
jurisdiction because the amount actually in controversy is less than ten
thousand dollars exclusive of interest and costs.
Signed: ________
Attorney for Defendant.
Address: ________
Notice of Motion
To: _________________
Attorney for Plaintiff.
_______________
Please take notice, that the undersigned will bring the above motion
on for hearing before this Court at Room ___, United States Court House,
Foley Square, City of New York, on the ___ day of _____, 20_, at 10
o'clock in the forenoon of that day or as soon thereafter as counsel can
be heard.
Signed: ________
Attorney for Defendant.
Address: ________
Explanatory Notes
1. The above motion and notice of motion may be combined and
denominated Notice of Motion. See Rule 7(b).
2. As to paragraph 3, see U.S.C., Title 28, Sec. 1391 (Venue
generally), subsections (b) and (c).
3. As to paragraph 4, see U.S.C., Title 28, Sec. 1331 (Federal
question; amount in controversy; costs), as amended by P.L. 85-554, 72
Stat. 415, July 25, 1958, requiring that the amount in controversy,
exclusive of interest and costs, be in excess of $10,000.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July
19, 1961; Mar. 27, 2003, eff. Dec. 1, 2003.)
Form 20
Answer Presenting Defenses Under Rule 12(b)_____________________
First Defense
The complaint fails to state a claim against defendant upon which
relief can be granted.
Second Defense
If defendant is indebted to plaintiffs for the goods mentioned in
the complaint, he is indebted to them jointly with G. H. G. H. is alive;
is a citizen of the State of New York and a resident of this district,
is subject to the jurisdiction of this court, as to both service of
process and venue; can be made a party without depriving this court of
jurisdiction of the present parties, and has not been made a party.
Third Defense
Defendant admits the allegation contained in paragraphs 1 and 4 of
the complaint; alleges that he is without knowledge or information
sufficient to form a belief as to the truth of the allegations contained
in paragraph 2 of the complaint; and denies each and every other
allegation contained in the complaint.
Fourth Defense
The right of action set forth in the complaint did not accrue within
six years next before the commencement of this action.
Counterclaim
(Here set forth any claim as a counterclaim in the manner in which a
claim is pleaded in a complaint. No statement of the grounds on which
the court's jurisdiction depends need be made unless the counterclaim
requires independent grounds of jurisdiction.)
Cross-Claim Against Defendant M. N.
(Here set forth the claim constituting a cross-claim against
defendant M. N. in the manner in which a claim is pleaded in a
complaint. The statement of grounds upon which the court's jurisdiction
depends need not be made unless the cross-claim requires independent
grounds of jurisdiction.)
Note
The above form contains examples of certain defenses provided for in
Rule 12(b). The first defense challenges the legal sufficiency of the
complaint. It is a substitute for a general demurrer or a motion to
dismiss.
The second defense embodies the old plea in abatement; the decision
thereon, however, may well provide under Rules 19 and 21 for the citing
in of the party rather than an abatement of the action.
The third defense is an answer on the merits.
The fourth defense is one of the affirmative defenses provided for
in Rule 8(c).
The answer also includes a counterclaim and a cross-claim.
Form 21
Answer to Complaint Set Forth in Form 8, With Counterclaim for
Interpleader____________________________________________________________
Defense
Defendant admits the allegations stated in paragraph 1 of the
complaint; and denies the allegations stated in paragraph 2 to the
extent set forth in the counterclaim herein.
Counterclaim for Interpleader
1. Defendant received the sum of ______ dollars as a deposit from E.
F.
2. Plaintiff has demanded the payment of such deposit to him by
virtue of an assignment of it which he claims to have received from E.
F.
3. E. F. has notified the defendant that he claims such deposit,
that the purported assignment is not valid, and that he holds the
defendant responsible for the deposit.
Wherefore defendant demands:
(1) That the court order E. F. to be made a party defendant to
respond to the complaint and to this counterclaim.\1\
(2) That the court order the plaintiff and E. F. to interplead their
respective claims.
(3) That the court adjudge whether the plaintiff or E. F. is
entitled to the sum of money.
(4) That the court discharge defendant from all liability in the
premises except to the person it shall adjudge entitled to the sum of
money.
(5) That the court award to the defendant its costs and attorney's
fees.
\1\ Rule 13(h) provides for the court ordering parties to a
counterclaim, but who are not parties to the original action, to be
brought in as defendants.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
Form 22
[Form 22
Motion To Bring in Third-Party Defendant] (Eliminated Jan. 21,
1963, eff. July 1, 1963)________________________________________________
Form 22-A
Summons and Complaint Against Third-Party Defendant_____________
United States District Court for the Southern
District of New York
Civil Action, File Number ____
To the above-named Third-Party Defendant:
You are hereby summoned and required to serve upon ___________,
plaintiff's attorney whose address is ___________, and upon
____________, who is attorney for C. D., defendant and third-party
plaintiff, and whose address is _______, an answer to the third-party
complaint which is herewith served upon you within 20 days after the
service of this summons upon you exclusive of the day of service. If you
fail to do so, judgment by default will be taken against you for the
relief demanded in the third-party complaint. There is also served upon
you herewith a copy of the complaint of the plaintiff which you may but
are not required to answer.
_________,
Clerk of Court.
[Seal of District Court]
Dated _________
United States District Court for the Southern
District of New York
Civil Action, File Number ____
1. Plaintiff A. B. has filed against defendant C. D. a complaint, a
copy of which is hereto attached as ``Exhibit A.''
2. (Here state the grounds upon which C. D. is entitled to recover
from E. F., all or part of what A. B. may recover from C. D. The
statement should be framed as in an original complaint.)
Wherefore C. D. demands judgment against third-party defendant E. F.
for all sums \1\ that may be adjudged against defendant C. D. in favor
of plaintiff A. B.
Signed: _________,
Attorney for C. D., Third-Party Plaintiff.
Address: ___________
\1\ Make appropriate change where C. D. is entitled to only partial
recovery-over against E. F.
(As added Jan. 21, 1963, eff. July 1, 1963.)
Form 22-B
Motion To Bring in Third-Party Defendant________________________
Defendant moves for leave, as third-party plaintiff, to cause to be
served upon E. F. a summons and third-party complaint, copies of which
are hereto attached as Exhibit X.
Signed: _________,
Attorney for Defendant C. D.
Address: ________.
Notice of Motion
(Contents the same as in Form 19. The notice should be addressed to
all parties to the action.)
Exhibit X
(Contents the same as in Form 22-A.)
(As added Jan. 21, 1963, eff. July 1, 1963.)
Form 23
Motion To Intervene as a Defendant Under Rule 24________________
(Based upon the complaint, Form 16)
United States District Court for the Southern
District of New York
Civil Action, File Number __
E. F. moves for leave to intervene as a defendant in this action, in
order to assert the defenses set forth in his proposed answer, of which
a copy is hereto attached, on the ground that he is the manufacturer and
vendor to the defendant, as well as to others, of the articles alleged
in the complaint to be an infringement of plaintiff's patent, and as
such has a defense to plaintiff's claim presenting both questions of law
and of fact which are common to the main action.\1\
Signed: ____________,
Attorney for E. F., Applicant for Intervention.
Address: ___________.
Notice of Motion
(Contents the same as in Form 19)
\1\ For other grounds of intervention, either of right or in the
discretion of the court, see Rule 24(a) and (b).
United States District Court for the Southern
District of New York
Civil Action, File Number __
First Defense
Intervener admits the allegations stated in paragraphs 1 and 4 of
the complaint; denies the allegations in paragraph 3, and denies the
allegations in paragraph 2 in so far as they assert the legality of the
issuance of the Letters Patent to plaintiff.
Second Defense
Plaintiff is not the first inventor of the articles covered by the
Letters Patent specified in his complaint, since articles substantially
identical in character were previously patented in Letters Patent
granted to intervener on January 5, 1920.
Signed: ____________,
Attorney for E. F., Intervener.
Address: ___________.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949.)
Form 24
Request for Production of Documents, etc., Under Rule 34________
Plaintiff A. B. requests defendant C. D. to respond within __ days
to the following requests:
(1) That defendant produce and permit plaintiff to inspect and to
copy each of the following documents:
(Here list the documents either individually or by category and
describe each of them.)
(Here state the time, place, and manner of making the inspection and
performance of any related acts.)
(2) That defendant produce and permit plaintiff to inspect and to
copy, test, or sample each of the following objects:
(Here list the objects either individually or by category and
describe each of them.)
(Here state the time, place, and manner of making the inspection and
performance of any related acts.)
(3) That defendant permit plaintiff to enter (here describe property
to be entered) and to inspect and to photograph, test or sample (here
describe the portion of the real property and the objects to be
inspected).
(Here state the time, place, and manner of making the inspection and
performance of any related acts.)
Signed: ____________,
Attorney for Plaintiff.
Address: ___________.
(As amended Mar. 30, 1970, eff. July 1, 1970.)
Form 25
Request for Admission Under Rule 36_____________________________
Plaintiff A. B. requests defendant C. D. within _____ days after
service of this request to make the following admissions for the purpose
of this action only and subject to all pertinent objections to
admissibility which may be interposed at the trial:
1. That each of the following documents, exhibited with this
request, is genuine.
(Here list the documents and describe each document.)
2. That each of the following statements is true.
(Here list the statements.)
Signed: ____________,
Attorney for Plaintiff.
Address: ___________.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948.)
Form 26
Allegation of Reason for Omitting Party_________________________
When it is necessary, under Rule 19(c), for the pleader to set forth
in his pleading the names of persons who ought to be made parties, but
who are not so made, there should be an allegation such as the one set
out below:
John Doe named in this complaint is not made a party to this action
[because he is not subject to the jurisdiction of this court]; [because
he cannot be made a party to this action without depriving this court of
jurisdiction].
Form 27
[Form 27
Notice of Appeal to Court of Appeals Under Rule 73(b)]
(Abrogated Dec. 4, 1967, eff. July 1, 1968)_____________________________
Form 28
Notice: Condemnation____________________________________________
United States District Court for the Southern
District of New York
Civil Action, File Number _____
To (here insert the names of the defendants to whom the notice is
directed):
You are hereby notified that a complaint in condemnation has
heretofore been filed in the office of the clerk of the United States
District Court for the Southern District of New York, in the United
States Court House in New York City, New York, for the taking (here
state the interest to be acquired, as ``an estate in fee simple'') for
use (here state briefly the use, ``as a site for a post-office
building'') of the following described property in which you have or
claim an interest.
(Here insert brief description of the property in which the
defendants, to whom the notice is directed, have or claim an
interest.)
The authority for the taking is (here state briefly, as ``the Act of
___, ___ Stat. ___, U.S.C., Title ___, Sec. ___''.) \1\
You are further notified that if you desire to present any objection
or defense to the taking of your property you are required to serve your
answer on the plaintiff's attorney at the address herein designated
within twenty days after ______________.\2\
Your answer shall identify the property in which you claim to have
an interest, state the nature and extent of the interest you claim, and
state all of your objections and defenses to the taking of your
property. All defenses and objections not so presented are waived. And
in case of your failure so to answer the complaint, judgment of
condemnation of that part of the above-described property in which you
have or claim an interest will be rendered.
But without answering, you may serve on the plaintiff's attorney a
notice of appearance designating the property in which you claim to be
interested. Thereafter you will receive notice of all proceedings
affecting it. At the trial of the issue of just compensation, whether or
not you have previously appeared or answered, you may present evidence
as to the amount of the compensation to be paid for your property, and
you may share in the distribution of the award.
__________
United States Attorney.
Address ___________
(Here state an address within the district where the United
States Attorney may be served as ``United States Court House,
New York, N.Y.''.)
Dated __________
\1\ And where appropriate add a citation to any applicable Executive
Order.
\2\ Here insert the words ``personal service of this notice upon
you,'' if personal service is to be made pursuant to subdivision
(d)(3)(i) of this rule [Rule 71A]; or, insert the date of the last
publication of notice, if service by publication is to be made pursuant
to subdivision (d)(3)(ii) of this rule.
(As added May 1, 1951, eff. Aug. 1, 1951.)
Form 29
Complaint: Condemnation_________________________________________
United States District Court for the Southern
District of New York
1. This is an action of a civil nature brought by the United States
of America for the taking of property under the power of eminent domain
and for the ascertainment and award of just compensation to the owners
and parties in interest.\1\
2. The authority for the taking is (here state briefly, as ``the Act
of _____, _____ Stat. _____, U.S.C., Title _____, Sec. _____'').\2\
3. The use for which the property is to be taken is (here state
briefly the use, ``as a site for a post-office building'').
4. The interest to be acquired in the property is (here state the
interest as ``an estate in fee simple'').
5. The property so to be taken is (here set forth a description of
the property sufficient for its identification) or (described in Exhibit
A hereto attached and made a part hereof).
6. The persons known to the plaintiff to have or claim an interest
in the property \3\ are:
(Here set forth the names of such persons and the interests
claimed.) \4\
7. In addition to the persons named, there are or may be others who
have or may claim some interest in the property to be taken, whose names
are unknown to the plaintiff and on diligent inquiry have not been
ascertained. They are made parties to the action under the designation
``Unknown Owners.''
Wherefore the plaintiff demands judgment that the property be
condemned and that just compensation for the taking be ascertained and
awarded and for such other relief as may be lawful and proper.
_________
United States Attorney.
Address _________
(Here state an address within the district where the United
States Attorney may be served, as ``United States Court House,
New York, N.Y.''.)
\1\ If the plaintiff is not the United States, but is, for example,
a corporation invoking the power of eminent domain delegated to it by
the state, then this paragraph 1 of the complaint should be
appropriately modified and should be preceded by a paragraph
appropriately alleging federal jurisdiction for the action, such as
diversity. See Form 2.
\2\ And where appropriate add a citation to any applicable Executive
Order.
\3\ At the commencement of the action the plaintiff need name as
defendants only the persons having or claiming an interest in the
property whose names are then known, but prior to any hearing involving
the compensation to be paid for a particular piece of property the
plaintiff must add as defendants all persons having or claiming an
interest in that property whose names can be ascertained by an
appropriate search of the records and also those whose names have
otherwise been learned. See Rule 71A(c)(2).
\4\ The plaintiff should designate, as to each separate piece of
property, the defendants who have been joined as owners thereof or of
some interest therein. See Rule 71A(c)(2).
(As added May 1, 1951, eff. Aug. 1, 1951.)
Form 30
Suggestion of Death Upon the Record Under Rule 25(a)(1)_________
A. B. [describe as a party, or as executor, administrator, or other
representative or successor of C. D., the deceased party] suggests upon
the record, pursuant to Rule 25(a)(1), the death of C. D. [describe as
party] during the pendency of this action.
(As added Jan. 21, 1963, eff. July 1, 1963.)
Form 31
Judgment on Jury Verdict________________________________________
United States District Court for the Southern
District of New York
Civil Action, File Number ____
A. B., Plaintiff
v.
<5-ln }>
Judgment
C. D., Defendant
This action came on for trial before the Court and a jury, Honorable
John Marshall, District Judge, presiding, and the issues having been
duly tried and the jury having duly rendered its verdict,
It is Ordered and Adjudged
[that the plaintiff A. B. recover of the defendant C. D. the sum of
_____, with interest thereon at the rate of _______ percent as provided
by law, and his costs of action.]
[that the plaintiff take nothing, that the action be dismissed on
the merits, and that the defendant C. D. recover of the plaintiff A. B.
his costs of action.]
Dated at New York, New York, this _____ day of _____, 20_.
___________
Clerk of Court.
Note
1. This Form is illustrative of the judgment to be entered upon the
general verdict of a jury. It deals with the cases where there is a
general jury verdict awarding the plaintiff money damages or finding for
the defendant, but is adaptable to other situations of jury verdicts.
2. The clerk, unless the court otherwise orders, is required
forthwith to prepare, sign, and enter the judgment upon a general jury
verdict without awaiting any direction by the court. The form of the
judgment upon a special verdict or a general verdict accompanied by
answers to interrogatories shall be promptly approved by the court, and
the clerk shall thereupon enter it. See Rule 58, as amended.
3. The Rules contemplate a simple judgment promptly entered. See
Rule 54(a). Every judgment shall be set forth on a separate document.
See Rule 58, as amended.
4. Attorneys are not to submit forms of judgment unless directed in
exceptional cases to do so by the court. See Rule 58, as amended.
(As added Jan. 21, 1963, eff. July 1, 1963; amended Mar. 27, 2003, eff.
Dec. 1, 2003.)
Form 32
Judgment on Decision by the Court_______________________________
United States District Court for the Southern
District of New York
Civil Action, File Number ____
A. B., Plaintiff
v.
<5-ln }>
Judgment
C. D., Defendant
This action came on for [trial] [hearing] before the Court,
Honorable John Marshall, District Judge, presiding, and the issues
having been duly [tried] [heard] and a decision having been duly
rendered,
It is Ordered and Adjudged
[that the plaintiff A. B. recover of the defendant C. D. the sum of
______, with interest thereon at the rate of _____ percent as provided
by law, and his costs of action.]
[that the plaintiff take nothing, that the action be dismissed on
the merits, and that the defendant C. D. recover of the plaintiff A. B.
his costs of action.]
Dated at New York, New York, this _________ day of __________, 20_.
___________
Clerk of Court.
Notes
1. This Form is illustrative of the judgment to be entered upon a
decision of the court. It deals with the cases of decisions by the court
awarding a party only money damages or costs, but is adaptable to other
decisions by the court.
2. The clerk, unless the court otherwise orders, is required
forthwith, without awaiting any direction by the court, to prepare,
sign, and enter the judgment upon a decision by the court that a party
shall recover only a sum certain or costs or that all relief shall be
denied. The form of the judgment upon a decision by the court granting
other relief shall be promptly approved by the court, and the clerk
shall thereupon enter it. See Rule 58, as amended.
3. See also paragraphs 3-4 of the Explanatory Note to Form 31.
(As added Jan. 21, 1963, eff. July 1, 1963; amended Mar. 27, 2003, eff.
Dec. 1, 2003.)
Form 33
Notice of Availability of Magistrate Judge to Exercise
Jurisdiction____________________________________________________________
In accordance with the provisions of Title 28, U.S.C. Sec. 636(c),
you are hereby notified that a United States magistrate judge of this
district court is available to exercise the court's jurisdiction and to
conduct any or all proceedings in this case including a jury or nonjury
trial, and entry of a final judgment. Exercise of this jurisdiction by a
magistrate judge is, however, permitted only if all parties voluntarily
consent.
You may, without adverse substantive consequences, withhold your
consent, but this will prevent the court's jurisdiction from being
exercised by a magistrate judge. If any party withholds consent, the
identity of the parties consenting or withholding consent will not be
communicated to any magistrate judge or to the district judge to whom
the case has been assigned.
An appeal from a judgment entered by a magistrate judge may be taken
directly to the United States court of appeals for this judicial circuit
in the same manner as an appeal from any other judgment of a district
court.
Copies of the Form for the ``Consent to Jurisdiction by a United
States Magistrate Judge'' are available from the clerk of the court.
(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Apr. 22, 1993, eff.
Dec. 1, 1993; Apr. 11, 1997, eff. Dec. 1, 1997.)
Form 34
Consent to Exercise of Jurisdiction by a United States
Magistrate Judge________________________________________________________
UNITED STATES DISTRICT COURT
________ DISTRICT OF ________
Plaintiff,
vs.
<5-ln }>
Docket No. ____
Defendant.
CONSENT TO JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE
In accordance with the provisions of Title 28, U.S.C. Sec. 636(c),
the undersigned party or parties to the above-captioned civil matter
hereby voluntarily consent to have a United States magistrate judge
conduct any and all further proceedings in the case, including trial,
and order the entry of a final judgment.
__________ ____________________
Date Signature
Note: Return this form to the Clerk of the Court if you consent to
jurisdiction by a magistrate judge. Do not send a copy of this
form to any district judge or magistrate judge.
(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Apr. 22, 1993, eff.
Dec. 1, 1993; Apr. 11, 1997, eff. Dec. 1, 1997.)
Form 34A
Order of Reference______________________________________________
UNITED STATES DISTRICT COURT
________ DISTRICT OF ________
Plaintiff,
vs.
<5-ln }>
Docket No. ____
Defendant.
ORDER OF REFERENCE
IT IS HEREBY ORDERED that the above-captioned matter be referred to
United States Magistrate Judge ________ for all further proceedings and
entry of judgment in accordance with Title 28, U.S.C. Sec. 636(c) and
the consent of the parties.
____________
U.S. District Judge
(As added Apr. 22, 1993, eff. Dec. 1, 1993.)
Form 35
Report of Parties' Planning Meeting_____________________________
[Caption and Names of Parties]
1. Pursuant to Fed. R. Civ. P. 26(f), a meeting was held on
___(date)___ at ___(place)___ and was attended by:
___(name)___ for plaintiff(s)
___(name)___ for defendant(s) ___(party name)___
___(name)___ for defendant(s) ___(party name)___
2. Pre-Discovery Disclosures. The parties [have exchanged] [will
exchange by ___(date)___] the information required by [Fed. R. Civ. P.
26(a)(1)] [local rule __].
3. Discovery Plan. The parties jointly propose to the court the
following discovery plan: [Use separate paragraphs or subparagraphs as
necessary if parties disagree.]
Discovery will be needed on the following subjects: ___(brief description
of subjects on which discovery will be needed)___
Disclosure or discovery of electronically stored information should be
handled as follows: ___(brief description of parties' proposals)___
The parties have agreed to an order regarding claims of privilege or of
protection as trial-preparation material asserted after production, as
follows: ___(brief description of provisions of proposed order)___.
All discovery commenced in time to be completed by ___(date)___.
[Discovery on ___(issue for early discovery)___ to be completed by
___(date)___.]
Maximum of __ interrogatories by each party to any other party. [Responses
due __ days after service.]
Maximum of __ requests for admission by each party to any other party.
[Responses due __ days after service.]
Maximum of ___ depositions by plaintiff(s) and __ by defendant(s).
Each deposition [other than of ______] limited to maximum of __ hours
unless extended by agreement of parties.
Reports from retained experts under Rule 26(a)(2) due:
from plaintiff(s) by ___(date)___
from defendant(s) by ___(date)___
Supplementations under Rule 26(e) due ___(time(s) or interval(s))___.
4. Other Items. [Use separate paragraphs or subparagraphs as
necessary if parties disagree.]
The parties [request] [do not request] a conference with the court before
entry of the scheduling order.
The parties request a pretrial conference in ___(month and year)___.
Plaintiff(s) should be allowed until ___(date)___ to join additional
parties and until ___(date)___ to amend the pleadings.
Defendant(s) should be allowed until ___(date)___ to join additional
parties and until ___(date)___ to amend the pleadings.
All potentially dispositive motions should be filed by ___(date)___.
Settlement [is likely] [is unlikely] [cannot be evaluated prior to
___(date)___] [may be enhanced by use of the following alternative dispute
resolution procedure: [____________].
Final lists of witnesses and exhibits under Rule 26(a)(3) should be due
from plaintiff(s) by ___(date)___
from defendant(s) by ___(date)___
Parties should have __ days after service of final lists of witnesses and
exhibits to list objections under Rule 26(a)(3).
The case should be ready for trial by ___(date)___ [and at this time is
expected to take approximately ___(length of time)___].
[Other matters.]
Date: ________
(As added Apr. 22, 1993, eff. Dec. 1, 1993; amended Apr. 12, 2006, eff.
Dec. 1, 2006.)
SUPPLEMENTAL RULES FOR ADMIRALTY OR MARITIME CLAIMS AND ASSET
FORFEITURE ACTIONS
Rule A
Scope of Rules__________________________________________________
(1) These Supplemental Rules apply to:
(A) the procedure in admiralty and maritime claims within
the meaning of Rule 9(h) with respect to the following remedies:
(i) maritime attachment and garnishment,
(ii) actions in rem,
(iii) possessory, petitory, and partition actions,
and
(iv) actions for exoneration from or limitation of
liability;
(B) forfeiture actions in rem arising from a federal
statute; and
(C) the procedure in statutory condemnation proceedings
analogous to maritime actions in rem, whether within the
admiralty and maritime jurisdiction or not. Except as otherwise
provided, references in these Supplemental Rules to actions in
rem include such analogous statutory condemnation proceedings.
(2) The Federal Rules of Civil Procedure also apply to the foregoing
proceedings except to the extent that they are inconsistent with these
Supplemental Rules.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 12, 2006, eff.
Dec. 1, 2006.)
Rule B
In Personam Actions: Attachment and Garnishment_________________
(1) When Available; Complaint, Affidavit, Judicial Authorization,
and Process. In an in personam action:
(a) If a defendant is not found within the district when a
verified complaint praying for attachment and the affidavit
required by Rule B(1)(b) are filed, a verified complaint may
contain a prayer for process to attach the defendant's tangible
or intangible personal property--up to the amount sued for--in
the hands of garnishees named in the process.
(b) The plaintiff or the plaintiff's attorney must sign and
file with the complaint an affidavit stating that, to the
affiant's knowledge, or on information and belief, the defendant
cannot be found within the district. The court must review the
complaint and affidavit and, if the conditions of this Rule B
appear to exist, enter an order so stating and authorizing
process of attachment and garnishment. The clerk may issue
supplemental process enforcing the court's order upon
application without further court order.
(c) If the plaintiff or the plaintiff's attorney certifies
that exigent circumstances make court review impracticable, the
clerk must issue the summons and process of attachment and
garnishment. The plaintiff has the burden in any post-attachment
hearing under Rule E(4)(f) to show that exigent circumstances
existed.
(d)(i) If the property is a vessel or tangible property on
board a vessel, the summons, process, and any supplemental
process must be delivered to the marshal for service.
(ii) If the property is other tangible or intangible
property, the summons, process, and any supplemental process
must be delivered to a person or organization authorized to
serve it, who may be (A) a marshal; (B) someone under contract
with the United States; (C) someone specially appointed by the
court for that purpose; or, (D) in an action brought by the
United States, any officer or employee of the United States.
(e) The plaintiff may invoke state-law remedies under Rule
64 for seizure of person or property for the purpose of securing
satisfaction of the judgment.
(2) Notice to Defendant. No default judgment may be entered except
upon proof--which may be by affidavit--that:
(a) the complaint, summons, and process of attachment or
garnishment have been served on the defendant in a manner
authorized by Rule 4;
(b) the plaintiff or the garnishee has mailed to the
defendant the complaint, summons, and process of attachment or
garnishment, using any form of mail requiring a return receipt;
or
(c) the plaintiff or the garnishee has tried diligently to
give notice of the action to the defendant but could not do so.
(3) Answer.
(a) By Garnishee. The garnishee shall serve an answer,
together with answers to any interrogatories served with the
complaint, within 20 days after service of process upon the
garnishee. Interrogatories to the garnishee may be served with
the complaint without leave of court. If the garnishee refuses
or neglects to answer on oath as to the debts, credits, or
effects of the defendant in the garnishee's hands, or any
interrogatories concerning such debts, credits, and effects that
may be propounded by the plaintiff, the court may award
compulsory process against the garnishee. If the garnishee
admits any debts, credits, or effects, they shall be held in the
garnishee's hands or paid into the registry of the court, and
shall be held in either case subject to the further order of the
court.
(b) By Defendant. The defendant shall serve an answer within
30 days after process has been executed, whether by attachment
of property or service on the garnishee.
(As added Feb. 28, 1966; eff. July 1, 1966; amended Apr. 29, 1985, eff.
Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 17, 2000, eff. Dec.
1, 2000; Apr. 25, 2005, eff. Dec. 1, 2005.)
Rule C
In Rem Actions: Special Provisions______________________________
(1) When Available. An action in rem may be brought:
(a) To enforce any maritime lien;
(b) Whenever a statute of the United States provides for a
maritime action in rem or a proceeding analogous thereto.
Except as otherwise provided by law a party who may proceed in rem
may also, or in the alternative, proceed in personam against any person
who may be liable.
Statutory provisions exempting vessels or other property owned or
possessed by or operated by or for the United States from arrest or
seizure are not affected by this rule. When a statute so provides, an
action against the United States or an instrumentality thereof may
proceed on in rem principles.
(2) Complaint. In an action in rem the complaint must:
(a) be verified;
(b) describe with reasonable particularity the property that
is the subject of the action; and
(c) state that the property is within the district or will
be within the district while the action is pending.
(3) Judicial Authorization and Process.
(a) Arrest Warrant.
(i) The court must review the complaint and any
supporting papers. If the conditions for an in rem
action appear to exist, the court must issue an order
directing the clerk to issue a warrant for the arrest of
the vessel or other property that is the subject of the
action.
(ii) If the plaintiff or the plaintiff's attorney
certifies that exigent circumstances make court review
impracticable, the clerk must promptly issue a summons
and a warrant for the arrest of the vessel or other
property that is the subject of the action. The
plaintiff has the burden in any post-arrest hearing
under Rule E(4)(f) to show that exigent circumstances
existed.
(b) Service.
(i) If the property that is the subject of the
action is a vessel or tangible property on board a
vessel, the warrant and any supplemental process must be
delivered to the marshal for service.
(ii) If the property that is the subject of the
action is other property, tangible or intangible, the
warrant and any supplemental process must be delivered
to a person or organization authorized to enforce it,
who may be: (A) a marshal; (B) someone under contract
with the United States; (C) someone specially appointed
by the court for that purpose; or, (D) in an action
brought by the United States, any officer or employee of
the United States.
(c) Deposit in Court. If the property that is the subject of
the action consists in whole or in part of freight, the proceeds
of property sold, or other intangible property, the clerk must
issue--in addition to the warrant--a summons directing any
person controlling the property to show cause why it should not
be deposited in court to abide the judgment.
(d) Supplemental Process. The clerk may upon application
issue supplemental process to enforce the court's order without
further court order.
(4) Notice. No notice other than execution of process is required
when the property that is the subject of the action has been released
under Rule E(5). If the property is not released within 10 days after
execution, the plaintiff must promptly--or within the time that the
court allows--give public notice of the action and arrest in a newspaper
designated by court order and having general circulation in the
district, but publication may be terminated if the property is released
before publication is completed. The notice must specify the time under
Rule C(6) to file a statement of interest in or right against the seized
property and to answer. This rule does not affect the notice
requirements in an action to foreclose a preferred ship mortgage under
46 U.S.C. Sec. Sec. 31301 et seq., as amended.
(5) Ancillary Process. In any action in rem in which process has
been served as provided by this rule, if any part of the property that
is the subject of the action has not been brought within the control of
the court because it has been removed or sold, or because it is
intangible property in the hands of a person who has not been served
with process, the court may, on motion, order any person having
possession or control of such property or its proceeds to show cause why
it should not be delivered into the custody of the marshal or other
person or organization having a warrant for the arrest of the property,
or paid into court to abide the judgment; and, after hearing, the court
may enter such judgment as law and justice may require.
(6) Responsive Pleading; Interrogatories.
(a) Maritime Arrests and Other Proceedings.
(i) a person who asserts a right of possession or
any ownership interest in the property that is the
subject of the action must file a verified statement of
right or interest:
(A) within 10 days after the execution of
process, or
(B) within the time that the court allows;
(ii) the statement of right or interest must
describe the interest in the property that supports the
person's demand for its restitution or right to defend
the action;
(iii) an agent, bailee, or attorney must state the
authority to file a statement of right or interest on
behalf of another; and
(iv) a person who asserts a right of possession or
any ownership interest must serve an answer within 20
days after filing the statement of interest or right.
(b) Interrogatories. Interrogatories may be served with the
complaint in an in rem action without leave of court. Answers to
the interrogatories must be served with the answer to the
complaint.
(As added Feb. 28, 1966; eff. July 1, 1966; amended Apr. 29, 1985, eff.
Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec.
1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1,
2002; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 12, 2006, eff. Dec. 1,
2006.)
Rule D
Possessory, Petitory, and Partition Actions_____________________
In all actions for possession, partition, and to try title
maintainable according to the course of the admiralty practice with
respect to a vessel, in all actions so maintainable with respect to the
possession of cargo or other maritime property, and in all actions by
one or more part owners against the others to obtain security for the
return of the vessel from any voyage undertaken without their consent,
or by one or more part owners against the others to obtain possession of
the vessel for any voyage on giving security for its safe return, the
process shall be by a warrant of arrest of the vessel, cargo, or other
property, and by notice in the manner provided by Rule B(2) to the
adverse party or parties.
(As added Feb. 28, 1966, eff. July 1, 1966.)
Rule E
Actions in Rem and Quasi in Rem: General Provisions_____________
(1) Applicability. Except as otherwise provided, this rule applies
to actions in personam with process of maritime attachment and
garnishment, actions in rem, and petitory, possessory, and partition
actions, supplementing Rules B, C, and D.
(2) Complaint; Security.
(a) Complaint. In actions to which this rule is applicable
the complaint shall state the circumstances from which the claim
arises with such particularity that the defendant or claimant
will be able, without moving for a more definite statement, to
commence an investigation of the facts and to frame a responsive
pleading.
(b) Security for Costs. Subject to the provisions of Rule
54(d) and of relevant statutes, the court may, on the filing of
the complaint or on the appearance of any defendant, claimant,
or any other party, or at any later time, require the plaintiff,
defendant, claimant, or other party to give security, or
additional security, in such sum as the court shall direct to
pay all costs and expenses that shall be awarded against the
party by any interlocutory order or by the final judgment, or on
appeal by any appellate court.
(3) Process.
(a) In admiralty and maritime proceedings process in rem or
of maritime attachment and garnishment may be served only within
the district.
(b) Issuance and Delivery. Issuance and delivery of process
in rem, or of maritime attachment and garnishment, shall be held
in abeyance if the plaintiff so requests.
(4) Execution of Process; Marshal's Return; Custody of Property;
Procedures for Release.
(a) In General. Upon issuance and delivery of the process,
or, in the case of summons with process of attachment and
garnishment, when it appears that the defendant cannot be found
within the district, the marshal or other person or organization
having a warrant shall forthwith execute the process in
accordance with this subdivision (4), making due and prompt
return.
(b) Tangible Property. If tangible property is to be
attached or arrested, the marshal or other person or
organization having the warrant shall take it into the marshal's
possession for safe custody. If the character or situation of
the property is such that the taking of actual possession is
impracticable, the marshal or other person executing the process
shall affix a copy thereof to the property in a conspicuous
place and leave a copy of the complaint and process with the
person having possession or the person's agent. In furtherance
of the marshal's custody of any vessel the marshal is authorized
to make a written request to the collector of customs not to
grant clearance to such vessel until notified by the marshal or
deputy marshal or by the clerk that the vessel has been released
in accordance with these rules.
(c) Intangible Property. If intangible property is to be
attached or arrested the marshal or other person or organization
having the warrant shall execute the process by leaving with the
garnishee or other obligor a copy of the complaint and process
requiring the garnishee or other obligor to answer as provided
in Rules B(3)(a) and C(6); or the marshal may accept for payment
into the registry of the court the amount owed to the extent of
the amount claimed by the plaintiff with interest and costs, in
which event the garnishee or other obligor shall not be required
to answer unless alias process shall be served.
(d) Directions With Respect to Property in Custody. The
marshal or other person or organization having the warrant may
at any time apply to the court for directions with respect to
property that has been attached or arrested, and shall give
notice of such application to any or all of the parties as the
court may direct.
(e) Expenses of Seizing and Keeping Property; Deposit. These
rules do not alter the provisions of Title 28, U.S.C.,
Sec. 1921, as amended, relative to the expenses of seizing and
keeping property attached or arrested and to the requirement of
deposits to cover such expenses.
(f) Procedure for Release From Arrest or Attachment.
Whenever property is arrested or attached, any person claiming
an interest in it shall be entitled to a prompt hearing at which
the plaintiff shall be required to show why the arrest or
attachment should not be vacated or other relief granted
consistent with these rules. This subdivision shall have no
application to suits for seamen's wages when process is issued
upon a certification of sufficient cause filed pursuant to Title
46, U.S.C. Sec. Sec. 603 and 604 \1\ or to actions by the United
States for forfeitures for violation of any statute of the
United States.
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\1\ Repealed by Pub. L. 98-89, Sec. 4(b), Aug. 26, 1983, 97 Stat.
600, section 1 of which enacted Title 46, Shipping.
---------------------------------------------------------------------------
(5) Release of Property.
(a) Special Bond. Whenever process of maritime attachment
and garnishment or process in rem is issued the execution of
such process shall be stayed, or the property released, on the
giving of security, to be approved by the court or clerk, or by
stipulation of the parties, conditioned to answer the judgment
of the court or of any appellate court. The parties may
stipulate the amount and nature of such security. In the event
of the inability or refusal of the parties so to stipulate the
court shall fix the principal sum of the bond or stipulation at
an amount sufficient to cover the amount of the plaintiff's
claim fairly stated with accrued interest and costs; but the
principal sum shall in no event exceed (i) twice the amount of
the plaintiff's claim or (ii) the value of the property on due
appraisement, whichever is smaller. The bond or stipulation
shall be conditioned for the payment of the principal sum and
interest thereon at 6 per cent per annum.
(b) General Bond. The owner of any vessel may file a general
bond or stipulation, with sufficient surety, to be approved by
the court, conditioned to answer the judgment of such court in
all or any actions that may be brought thereafter in such court
in which the vessel is attached or arrested. Thereupon the
execution of all such process against such vessel shall be
stayed so long as the amount secured by such bond or stipulation
is at least double the aggregate amount claimed by plaintiffs in
all actions begun and pending in which such vessel has been
attached or arrested. Judgments and remedies may be had on such
bond or stipulation as if a special bond or stipulation had been
filed in each of such actions. The district court may make
necessary orders to carry this rule into effect, particularly as
to the giving of proper notice of any action against or
attachment of a vessel for which a general bond has been filed.
Such bond or stipulation shall be indorsed by the clerk with a
minute of the actions wherein process is so stayed. Further
security may be required by the court at any time.
If a special bond or stipulation is given in a particular
case, the liability on the general bond or stipulation shall
cease as to that case.
(c) Release by Consent or Stipulation; Order of Court or
Clerk; Costs. Any vessel, cargo, or other property in the
custody of the marshal or other person or organization having
the warrant may be released forthwith upon the marshal's
acceptance and approval of a stipulation, bond, or other
security, signed by the party on whose behalf the property is
detained or the party's attorney and expressly authorizing such
release, if all costs and charges of the court and its officers
shall have first been paid. Otherwise no property in the custody
of the marshal, other person or organization having the warrant,
or other officer of the court shall be released without an order
of the court; but such order may be entered as of course by the
clerk, upon the giving of approved security as provided by law
and these rules, or upon the dismissal or discontinuance of the
action; but the marshal or other person or organization having
the warrant shall not deliver any property so released until the
costs and charges of the officers of the court shall first have
been paid.
(d) Possessory, Petitory, and Partition Actions. The
foregoing provisions of this subdivision (5) do not apply to
petitory, possessory, and partition actions. In such cases the
property arrested shall be released only by order of the court,
on such terms and conditions and on the giving of such security
as the court may require.
(6) Reduction or Impairment of Security. Whenever security is taken
the court may, on motion and hearing, for good cause shown, reduce the
amount of security given; and if the surety shall be or become
insufficient, new or additional sureties may be required on motion and
hearing.
(7) Security on Counterclaim.
(a) When a person who has given security for damages in the
original action asserts a counterclaim that arises from the
transaction or occurrence that is the subject of the original
action, a plaintiff for whose benefit the security has been
given must give security for damages demanded in the
counterclaim unless the court, for cause shown, directs
otherwise. Proceedings on the original claim must be stayed
until this security is given, unless the court directs
otherwise.
(b) The plaintiff is required to give security under Rule
E(7)(a) when the United States or its corporate instrumentality
counterclaims and would have been required to give security to
respond in damages if a private party but is relieved by law
from giving security.
(8) Restricted Appearance. An appearance to defend against an
admiralty and maritime claim with respect to which there has issued
process in rem, or process of attachment and garnishment, may be
expressly restricted to the defense of such claim, and in that event is
not an appearance for the purposes of any other claim with respect to
which such process is not available or has not been served.
(9) Disposition of Property; Sales.
(a) Interlocutory Sales; Delivery.
(i) On application of a party, the marshal, or other
person having custody of the property, the court may
order all or part of the property sold--with the sales
proceeds, or as much of them as will satisfy the
judgment, paid into court to await further orders of the
court--if:
(A) the attached or arrested property is
perishable, or liable to deterioration, decay,
or injury by being detained in custody pending
the action;
(B) the expense of keeping the property is
excessive or disproportionate; or
(C) there is an unreasonable delay in
securing release of the property.
(ii) In the circumstances described in Rule
E(9)(a)(i), the court, on motion by a defendant or a
person filing a statement of interest or right under
Rule C(6), may order that the property, rather than
being sold, be delivered to the movant upon giving
security under these rules.
(b) Sales, Proceeds. All sales of property shall be made by
the marshal or a deputy marshal, or by other person or
organization having the warrant, or by any other person assigned
by the court where the marshal or other person or organization
having the warrant is a party in interest; and the proceeds of
sale shall be forthwith paid into the registry of the court to
be disposed of according to law.
(10) Preservation of Property. When the owner or another person
remains in possession of property attached or arrested under the
provisions of Rule E(4)(b) that permit execution of process without
taking actual possession, the court, on a party's motion or on its own,
may enter any order necessary to preserve the property and to prevent
its removal.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 29, 1985, eff.
Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec.
1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1,
2006.)
Rule F
Limitation of Liability_________________________________________
(1) Time for Filing Complaint; Security. Not later than six months
after receipt of a claim in writing, any vessel owner may file a
complaint in the appropriate district court, as provided in subdivision
(9) of this rule, for limitation of liability pursuant to statute. The
owner (a) shall deposit with the court, for the benefit of claimants, a
sum equal to the amount or value of the owner's interest in the vessel
and pending freight, or approved security therefor, and in addition such
sums, or approved security therefor, as the court may from time to time
fix as necessary to carry out the provisions of the statutes as amended;
or (b) at the owner's option shall transfer to a trustee to be appointed
by the court, for the benefit of claimants, the owner's interest in the
vessel and pending freight, together with such sums, or approved
security therefor, as the court may from time to time fix as necessary
to carry out the provisions of the statutes as amended. The plaintiff
shall also give security for costs and, if the plaintiff elects to give
security, for interest at the rate of 6 percent per annum from the date
of the security.
(2) Complaint. The complaint shall set forth the facts on the basis
of which the right to limit liability is asserted and all facts
necessary to enable the court to determine the amount to which the
owner's liability shall be limited. The complaint may demand exoneration
from as well as limitation of liability. It shall state the voyage if
any, on which the demands sought to be limited arose, with the date and
place of its termination; the amount of all demands including all
unsatisfied liens or claims of lien, in contract or in tort or
otherwise, arising on that voyage, so far as known to the plaintiff, and
what actions and proceedings, if any, are pending thereon; whether the
vessel was damaged, lost, or abandoned, and, if so, when and where; the
value of the vessel at the close of the voyage or, in case of wreck, the
value of her wreckage, strippings, or proceeds, if any, and where and in
whose possession they are; and the amount of any pending freight
recovered or recoverable. If the plaintiff elects to transfer the
plaintiff's interest in the vessel to a trustee, the complaint must
further show any prior paramount liens thereon, and what voyages or
trips, if any, she has made since the voyage or trip on which the claims
sought to be limited arose, and any existing liens arising upon any such
subsequent voyage or trip, with the amounts and causes thereof, and the
names and addresses of the lienors, so far as known; and whether the
vessel sustained any injury upon or by reason of such subsequent voyage
or trip.
(3) Claims Against Owner; Injunction. Upon compliance by the owner
with the requirements of subdivision (1) of this rule all claims and
proceedings against the owner or the owner's property with respect to
the matter in question shall cease. On application of the plaintiff the
court shall enjoin the further prosecution of any action or proceeding
against the plaintiff or the plaintiff's property with respect to any
claim subject to limitation in the action.
(4) Notice to Claimants. Upon the owner's compliance with
subdivision (1) of this rule the court shall issue a notice to all
persons asserting claims with respect to which the complaint seeks
limitation, admonishing them to file their respective claims with the
clerk of the court and to serve on the attorneys for the plaintiff a
copy thereof on or before a date to be named in the notice. The date so
fixed shall not be less than 30 days after issuance of the notice. For
cause shown, the court may enlarge the time within which claims may be
filed. The notice shall be published in such newspaper or newspapers as
the court may direct once a week for four successive weeks prior to the
date fixed for the filing of claims. The plaintiff not later than the
day of second publication shall also mail a copy of the notice to every
person known to have made any claim against the vessel or the plaintiff
arising out of the voyage or trip on which the claims sought to be
limited arose. In cases involving death a copy of such notice shall be
mailed to the decedent at the decedent's last known address, and also to
any person who shall be known to have made any claim on account of such
death.
(5) Claims and Answer. Claims shall be filed and served on or before
the date specified in the notice provided for in subdivision (4) of this
rule. Each claim shall specify the facts upon which the claimant relies
in support of the claim, the items thereof, and the dates on which the
same accrued. If a claimant desires to contest either the right to
exoneration from or the right to limitation of liability the claimant
shall file and serve an answer to the complaint unless the claim has
included an answer.
(6) Information To Be Given Claimants. Within 30 days after the date
specified in the notice for filing claims, or within such time as the
court thereafter may allow, the plaintiff shall mail to the attorney for
each claimant (or if the claimant has no attorney to the claimant) a
list setting forth (a) the name of each claimant, (b) the name and
address of the claimant's attorney (if the claimant is known to have
one), (c) the nature of the claim, i.e., whether property loss, property
damage, death, personal injury etc., and (d) the amount thereof.
(7) Insufficiency of Fund or Security. Any claimant may by motion
demand that the funds deposited in court or the security given by the
plaintiff be increased on the ground that they are less than the value
of the plaintiff's interest in the vessel and pending freight. Thereupon
the court shall cause due appraisement to be made of the value of the
plaintiff's interest in the vessel and pending freight; and if the court
finds that the deposit or security is either insufficient or excessive
it shall order its increase or reduction. In like manner any claimant
may demand that the deposit or security be increased on the ground that
it is insufficient to carry out the provisions of the statutes relating
to claims in respect of loss of life or bodily injury; and, after notice
and hearing, the court may similarly order that the deposit or security
be increased or reduced.
(8) Objections to Claims: Distribution of Fund. Any interested party
may question or controvert any claim without filing an objection
thereto. Upon determination of liability the fund deposited or secured,
or the proceeds of the vessel and pending freight, shall be divided pro
rata, subject to all relevant provisions of law, among the several
claimants in proportion to the amounts of their respective claims, duly
proved, saving, however, to all parties any priority to which they may
be legally entitled.
(9) Venue; Transfer. The complaint shall be filed in any district in
which the vessel has been attached or arrested to answer for any claim
with respect to which the plaintiff seeks to limit liability; or, if the
vessel has not been attached or arrested, then in any district in which
the owner has been sued with respect to any such claim. When the vessel
has not been attached or arrested to answer the matters aforesaid, and
suit has not been commenced against the owner, the proceedings may be
had in the district in which the vessel may be, but if the vessel is not
within any district and no suit has been commenced in any district, then
the complaint may be filed in any district. For the convenience of
parties and witnesses, in the interest of justice, the court may
transfer the action to any district; if venue is wrongly laid the court
shall dismiss or, if it be in the interest of justice, transfer the
action to any district in which it could have been brought. If the
vessel shall have been sold, the proceeds shall represent the vessel for
the purposes of these rules.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987, eff.
Aug. 1, 1987.)
Rule G
Forfeiture Actions In Rem_______________________________________
(1) Scope. This rule governs a forfeiture action in rem arising from
a federal statute. To the extent that this rule does not address an
issue, Supplemental Rules C and E and the Federal Rules of Civil
Procedure also apply.
(2) Complaint. The complaint must:
(a) be verified;
(b) state the grounds for subject-matter jurisdiction, in
rem jurisdiction over the defendant property, and venue;
(c) describe the property with reasonable particularity;
(d) if the property is tangible, state its location when any
seizure occurred and--if different--its location when the action
is filed;
(e) identify the statute under which the forfeiture action
is brought; and
(f) state sufficiently detailed facts to support a
reasonable belief that the government will be able to meet its
burden of proof at trial.
(3) Judicial Authorization and Process.
(a) Real Property. If the defendant is real property, the
government must proceed under 18 U.S.C. Sec. 985.
(b) Other Property; Arrest Warrant. If the defendant is not
real property:
(i) the clerk must issue a warrant to arrest the
property if it is in the government's possession,
custody, or control;
(ii) the court--on finding probable cause--must
issue a warrant to arrest the property if it is not in
the government's possession, custody, or control and is
not subject to a judicial restraining order; and
(iii) a warrant is not necessary if the property is
subject to a judicial restraining order.
(c) Execution of Process.
(i) The warrant and any supplemental process must be
delivered to a person or organization authorized to
execute it, who may be: (A) a marshal or any other
United States officer or employee; (B) someone under
contact with the United States; or (C) someone specially
appointed by the court for that purpose.
(ii) The authorized person or organization must
execute the warrant and any supplemental process on
property in the United States as soon as practicable
unless:
(A) the property is in the government's
possession, custody, or control; or
(B) the court orders a different time when
the complaint is under seal, the action is
stayed before the warrant and supplemental
process are executed, or the court finds other
good cause.
(iii) The warrant and any supplemental process may
be executed within the district or, when authorized by
statute, outside the district.
(iv) If executing a warrant on property outside the
United States is required, the warrant may be
transmitted to an appropriate authority for serving
process where the property is located.
(4) Notice.
(a) Notice by Publication.
(i) When Publication Is Required. A judgment of
forfeiture may be entered only if the government has
published notice of the action within a reasonable time
after filing the complaint or at a time the court
orders. But notice need not be published if:
(A) the defendant property is worth less
than $1,000 and direct notice is sent under Rule
G(4)(b) to every person the government can
reasonably identify as a potential claimant; or
(B) the court finds that the cost of
publication exceeds the property's value and
that other means of notice would satisfy due
process.
(ii) Content of the Notice. Unless the court orders
otherwise, the notice must:
(A) describe the property with reasonable
particularity;
(B) state the times under Rule G(5) to file
a claim and to answer; and
(C) name the government attorney to be
served with the claim and answer.
(iii) Frequency of Publication. Published notice
must appear:
(A) once a week for three consecutive weeks;
or
(B) only once if, before the action was
filed, notice of nonjudicial forfeiture of the
same property was published on an official
internet government forfeiture site for at least
30 consecutive days, or in a newspaper of
general circulation for three consecutive weeks
in a district where publication is authorized
under Rule G(4)(a)(iv).
(iv) Means of Publication. The government should
select from the following options a means of publication
reasonably calculated to notify potential claimants of
the action:
(A) if the property is in the United States,
publication in a newspaper generally circulated
in the district where the action is filed, where
the property was seized, or where property that
was not seized is located;
(B) if the property is outside the United
States, publication in a newspaper generally
circulated in a district where the action is
filed, in a newspaper generally circulated in
the country where the property is located, or in
legal notices published and generally circulated
in the country where the property is located; or
(C) instead of (A) or (B), posting a notice
on an official internet government forfeiture
site for at least 30 consecutive days.
(b) Notice to Known Potential Claimants.
(i) Direct Notice Required. The government must send
notice of the action and a copy of the complaint to any
person who reasonably appears to be a potential claimant
on the facts known to the government before the end of
the time for filing a claim under Rule G(5)(a)(ii)(B).
(ii) Content of the Notice. The notice must state:
(A) the date when the notice is sent;
(B) a deadline for filing a claim, at least
35 days after the notice is sent;
(C) that an answer or a motion under Rule 12
must be filed no later than 20 days after filing
the claim; and
(D) the name of the government attorney to
be served with the claim and answer.
(iii) Sending Notice.
(A) The notice must be sent by means
reasonably calculated to reach the potential
claimant.
(B) Notice may be sent to the potential
claimant or to the attorney representing the
potential claimant with respect to the seizure
of the property or in a related investigation,
administrative forfeiture proceeding, or
criminal case.
(C) Notice sent to a potential claimant who
is incarcerated must be sent to the place of
incarceration.
(D) Notice to a person arrested in
connection with an offense giving rise to the
forfeiture who is not incarcerated when notice
is sent may be sent to the address that person
last gave to the agency that arrested or
released the person.
(E) Notice to a person from whom the
property was seized who is not incarcerated when
notice is sent may be sent to the last address
that person gave to the agency that seized the
property.
(iv) When Notice Is Sent. Notice by the following
means is sent on the date when it is placed in the mail,
delivered to a commercial carrier, or sent by electronic
mail.
(v) Actual Notice. A potential claimant who had
actual notice of a forfeiture action may not oppose or
seek relief from forfeiture because of the government's
failure to send the required notice.
(5) Responsive Pleadings.
(a) Filing a Claim.
(i) A person who asserts an interest in the
defendant property may contest the forfeiture by filing
a claim in the court where the action is pending. The
claim must:
(A) identify the specific property claimed;
(B) identify the claimant and state the
claimant's interest in the property;
(C) be signed by the claimant under penalty
of perjury; and
(D) be served on the government attorney
designated under Rule G(4)(a)(ii)(C) or
(b)(ii)(D).
(ii) Unless the court for good cause sets a
different time, the claim must be filed:
(A) by the time stated in a direct notice
sent under Rule G(4)(b);
(B) if notice was published but direct
notice was not sent to the claimant or the
claimant's attorney, no later than 30 days after
final publication of newspaper notice or legal
notice under Rule G(4)(a) or no later than 60
days after the first day of publication on an
official internet government forfeiture site; or
(C) if notice was not published and direct
notice was not sent to the claimant or the
claimant's attorney:
(1) if the property was in the government's possession, custody, or control
when the complaint was filed, no later than 60 days after the filing, not
counting any time when the complaint was under seal or when the action was
stayed before execution of a warrant issued under Rule G(3)(b); or
(2) if the property was not in the government's possession, custody, or
control when the complaint was filed, no later than 60 days after the
government complied with 18 U.S.C. Sec. 985(c) as to real property, or 60
days after process was executed on the property under Rule G(3).
(iii) A claim filed by a person asserting an
interest as a bailee must identify the bailor, and if
filed on the bailor's behalf must state the authority to
do so.
(b) Answer. A claimant must serve and file an answer to the
complaint or a motion under Rule 12 within 20 days after filing
the claim. A claimant waives an objection to in rem jurisdiction
or to venue if the objection is not made by motion or stated in
the answer.
(6) Special Interrogatories.
(a) Time and Scope. The government may serve special
interrogatories limited to the claimant's identity and
relationship to the defendant property without the court's leave
at any time after the claim is filed and before discovery is
closed. But if the claimant serves a motion to dismiss the
action, the government must serve the interrogatories within 20
days after the motion is served.
(b) Answers or Objections. Answers or objections to these
interrogatories must be served within 20 days after the
interrogatories are served.
(c) Government's Response Deferred. The government need not
respond to a claimant's motion to dismiss the action under Rule
G(8)(b) until 20 days after the claimant has answered these
interrogatories.
(7) Preserving, Preventing Criminal Use, and Disposing of Property;
Sales.
(a) Preserving and Preventing Criminal Use of Property. When
the government does not have actual possession of the defendant
property the court, on motion or on its own, may enter any order
necessary to preserve the property, to prevent its removal or
encumbrance, or to prevent its use in a criminal offense.
(b) Interlocutory Sale or Delivery.
(i) Order to Sell. On motion by a party or a person
having custody of the property, the court may order all
or part of the property sold if:
(A) the property is perishable or at risk of
deterioration, decay, or injury by being
detained in custody pending the action;
(B) the expense of keeping the property is
excessive or is disproportionate to its fair
market value;
(C) the property is subject to a mortgage or
to taxes on which the owner is in default; or
(D) the court finds other good cause.
(ii) Who Makes the Sale. A sale must be made by a
United States agency that has authority to sell the
property, by the agency's contractor, or by any person
the court designates.
(iii) Sale Procedures. The sale is governed by 28
U.S.C. Sec. Sec. 2001, 2002, and 2004, unless all
parties, with the court's approval, agree to the sale,
aspects of the sale, or different procedures.
(iv) Sale Proceeds. Sale proceeds are a substitute
res subject to forfeiture in place of the property that
was sold. The proceeds must be held in an interest-
bearing account maintained by the United States pending
the conclusion of the forfeiture action.
(v) Delivery on a Claimant's Motion. The court may
order that the property be delivered to the claimant
pending the conclusion of the action if the claimant
shows circumstances that would permit sale under Rule
G(7)(b)(i) and gives security under these rules.
(c) Disposing of Forfeited Property. Upon entry of a
forfeiture judgment, the property or proceeds from selling the
property must be disposed of as provided by law.
(8) Motions.
(a) Motion To Suppress Use of the Property as Evidence. If
the defendant property was seized, a party with standing to
contest the lawfulness of the seizure may move to suppress use
of the property as evidence. Suppression does not affect
forfeiture of the property based on independently derived
evidence.
(b) Motion To Dismiss the Action.
(i) A claimant who establishes standing to contest
forfeiture may move to dismiss the action under Rule
12(b).
(ii) In an action governed by 18 U.S.C.
Sec. 983(a)(3)(D) the complaint may not be dismissed on
the ground that the government did not have adequate
evidence at the time the complaint was filed to
establish the forfeitability of the property. The
sufficiency of the complaint is governed by Rule G(2).
(c) Motion To Strike a Claim or Answer.
(i) At any time before trial, the government may
move to strike a claim or answer:
(A) for failing to comply with Rule G(5) or
(6), or
(B) because the claimant lacks standing.
(ii) The motion:
(A) must be decided before any motion by the
claimant to dismiss the action; and
(B) may be presented as a motion for
judgment on the pleadings or as a motion to
determine after a hearing or by summary judgment
whether the claimant can carry the burden of
establishing standing by a preponderance of the
evidence.
(d) Petition To Release Property.
(i) If a United States agency or an agency's
contractor holds property for judicial or nonjudicial
forfeiture under a statute governed by 18 U.S.C.
Sec. 983(f), a person who has filed a claim to the
property may petition for its release under Sec. 983(f).
(ii) If a petition for release is filed before a
judicial forfeiture action is filed against the
property, the petition may be filed either in the
district where the property was seized or in the
district where a warrant to seize the property issued.
If a judicial forfeiture action against the property is
later filed in another district--or if the government
shows that the action will be filed in another
district--the petition may be transferred to that
district under 28 U.S.C. Sec. 1404.
(e) Excessive Fines. A claimant may seek to mitigate a
forfeiture under the Excessive Fines Clause of the Eighth
Amendment by motion for summary judgment or by motion made after
entry of a forfeiture judgment if:
(i) the claimant has pleaded the defense under Rule
8; and
(ii) the parties have had the opportunity to conduct
civil discovery on the defense.
(9) Trial. Trial is to the court unless any party demands trial by
jury under Rule 38.
(As added Apr. 12, 2006, eff. Dec. 1, 2006.)