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Federal Rules of Civil Procedure for US District C
Federal Rules of Civil Procedure for the United States
District Courts.
I. Scope of Rules - One form of Action.
1. Scope of Rules.
2. One Form of Action.
II. Commencement of Action; Service of Process, Plead-
ings, Motions and Orders.
3. Commencement of Action.
4. Process:
(a) Summons; Issuance.
(b) Same: Form.
© Service.
(d) Summons and Complaint; Person to be served.
(e) Summons; Service Upon Party Not Inhabitant
of or Found Within State.
(f) Territorial Limits of Effective Service.
(g) Return.
(h) Amendment.
(i) Alternative Provisions for Service in a
Foreign Country.
(j) Summons; Time Limit for Service.
5. Service and Filing of Pleadings and Other Papers.
(a) Service; When Required.
(b) Same. How made.
© Same. Numerous Defendants.
(d) Filing.
(e) Filing WIth the Court Defined.
6. Time:
(a) Computation.
(b) Enlargement
© Rescinded.
(d) For Motions - Affidavits
(e) Additional Time After Service by Mail.
III. Pleadings and Motions.
7. Pleadings Allowed; Form of Motions.
(a) Pleadings.
(b) Motions and Other Papers.
© Demurrers, Pleas, Etc. Abolished.
8. General Rules of Pleading.
(a) Claims for Relief.
(b) Defenses. Form of Denials.
© Affirmative Defenses.
(d) Effect of Failure to Deny.
(e) Pleading to be Concise and Direct;
Consistency.
(f) Construction of Pleadings.
9. Pleading Special Matters.
(a) Capacity.
(b) Fraud, Mistake, Condition of the Mind.
© Conditions Precedent.
(d) Official Document or Act.
(e) Judgment.
(f) Time and Place.
(g) Special Damage.
(h) Admiralty and Maritime Claims.
10. Form of Pleadings.
(a) Captions; Names of Parties.
(b) Paragraphs. Separate Statements.
© Adoption by Reference. Exhibits.
11. Signing of Pleadings, Motions and Other Papers.
Sanctions.
12. Defenses and Objections - When and How Presented-
By Pleading or Motion - Motions for Judgment on
the Pleadings.
(a) When Presented.
(b) How Presented.
© Motion for Judgment on the Pleadings.
(d) Preliminary Hearings.
(e) Motion for a More Definite Statement.
(f) Motion to Strike.
(g) Consolidation of Defenses in Motion.
(h) Waiver or Preservation of Certain Defenses.
13. Counterclaim and Cross-Claim.
(a) Compulsory Counterclaims.
(b) Permissive Counterclaims.
© Counterclaim Exceeding Opposing Claim.
(d) Counterclaim Against the United States.
(e) Counterclaim Maturing or Acquired After
Pleading.
(f) Omitted Counterclaim.
(g) Cross-Claim Against Co-Party.
(h) Joinder of Additional Parties.
(i) Separate Trials; Separate Judgments.
14. Third-Party Practice:
(a) When Defendant May Bring in Third Party.
(b) When Plaintiff May Bring in Third Party.
© Admiralty and Maritime Claims.
15. Amended and Supplemental Pleadings:
(a) Amendments.
(b) Amendments to Conform to the Evidence.
© Relation Back of Amendments.
(d) Supplemental Pleadings.
16. Pretrial Conferences; Objectives.
(a) Pretrial Conferences; Objectives.
(b) Scheduling and Planning.
© Subjects to be Discussed at Pretrial Conf-
erences.
(d) Final Pretrial Conference.
(e) Pretrial Orders.
(f) Sanctions.
IV. Parties
17. Parties Plaintiff and Defendant; Capacity.
(a) Real Party in Interest.
(b) Capacity to Sue or Be Sued.
© Infants or Incompetent Persons.
18. Joinder of Claims and Remedies.
(a) Joinder of Claims.
(b) Joinder of Remedies; Fraudulent Convey-
ances.
19. Joinder of Persons Needed for Just Adjudication.
(a) Persons to be Joined if Feasible.
(b) Determination by Court Whenever Joinder not
Feasible.
© Pleading Reasons for Nonjoinder.
(d) Exception of Class Actions.
20. Permissive Joinder of Parties;
(a) Permissive Joinder.
(b) Separate Trials.
21. Misjoinder and Non-Joinder of Parties.
22. Interpleader.
23. Class Actions:
(a) Prerequisites to a Class Action.
(b) Class Actions Maintainable.
© Determination by Order Whether Class Action
to be Maintained; Notice; Judgment; Actions
Conducted Partially as Class Actions.
(d) Orders in Conduct of Actions.
(e) Dismissal or Compromise.
23.1. Derivative Actions by Shareholders.
23.2. Actions Relating to Unincorporated Associations.
24. Intervention:
(a) Intervention of Right.
(b) Permissive Intervention.
© Procedure.
25. Substitution of Parties.
(a) Death.
(b) Incompetency.
© Transfer of Interest.
(d) Public Officers; Death or Separation from
Office.
V. Depositions and Discovery.
26. General Provisions Governing Discovery:
(a) Discovery Methods.
(b) Discovery Scope and Limits.
(1) In General.
(2) Insurance Agreements.
(3) Trial Preparation: Materials.
(4) Trial Preparation: Experts.
© Protective Orders.
(d) Sequence and Timing of Discovery.
(e) Supplementation of Responses.
(f) Discovery Conference.
(g) Signing of Discovery Requests, Responses, and
Objections.
27. Depositions Before Action or Pending Appeal:
(a) Before Action:
(1) Petition.
(2) Notice and Service.
(3) Order and Examination.
(4) Use of Deposition.
(b) Pending Appeal.
© Perpetuation by Action.
28. Persons Before Whom depositions May Be Taken.
(a) Within the United States.
(b) In Foreign Countries.
© Disqualification for Interest.
29. Stipulations Regarding Discovery Procedure.
30. Depositions Upon Oral Examination:
(a) When Depositions May be Taken.
(b) Notice of Examination: General Requirements;
Special Notice; Non-Stenographic Recording;
Production of Documents and Things; Deposit-
ion of Organization; Deposition by Telephone.
© Examination and Cross-Examination; Record of
Examination; Oath; Objections; Objections
(d) Motion to Terminate or Limit Examination.
(e) Submission to Witness; Changes; Signing.
(f) Certification and Filing by Officer; Exhibits;
Copies; Notice of Filing.
(g) Failure to Attend or to Serve Subpoena; Ex-
penses.
31. Depositions Upon Written Questions:
(a) Serving Questions; Notice.
(b) Officer to Take Responses and Prepare Record.
© Notice of Filing.
32. Use of Depositions in Court Proceedings;
(a) Use of Depositions.
(b) Objections to Admissibility.
© Abrogated.
(d) Effect of Errors and Irregularities in Depos-
ition.
(1) As to Notice.
(2) As to Disqualification of Officer.
(3) As to Taking of Deposition.
(4) As to Completion and Return of Deposition.
33. Interrogatories to Parties.
(a) Availability; Procedures for Use.
(b) Scope; Use at Trial.
© Option to Produce Business Records.
34. Production of Documents and Things and Entry
Upon Land for Inspection and Other Purposes:
(a) Scope.
(b) Procedure.
© Persons Not Parties.
35. Physical and mental Examination of Persons:
(a) Order for Examination.
(b) Report of Examining Physician.
36. Requests for Admission:
(a) Request for Admission.
(b) Effect of Admission.
37. Failure to Make or Cooperate in Discovery: Sanct-
ions:
(a) Motion for Order Compelling Discovery:
(1) Appropriate Court.
(2) Motion.
(3) Evasive or Incomplete Answer.
(4) Award of Expenses of Motion.
(b) Failure to Comply With Order:
(1) Sanctions by Court in District Where Dep-
osition is Taken.
(2) Sanctions by Court in Which Action is
Pending.
© Expenses on Failure to Admit.
(d) Failure of Party to Attend at Own Deposition
or Serve Answers to Interrogatories of a Dis-
covery Plan.
VI. Trials
38. Jury Trial of RIght:
(a) Right Preserved.
(b) Demand.
© Same: Specification of Issues.
(d) Waiver.
(e) Admiralty and Maritime Claims.
39. Trial by Jury or by the Court:
(a) By Jury.
(b) By the Court.
© Advisory Jury and Trial by Consent.
40. Assignment of Cases for Trial.
41. Dismissal of Actions:
(a) Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; By Stipulation.
(2) By Order of Court.
(b) Involuntary Dismissal: Effect Thereof.
© Dismissal of Counterclaim, Cross-Claim,
Third Party Claim.
(d) Costs of Previously Dismissed Action.
42. Consolidation; Separate Trials:
(a) Consolidation.
(b) Separate Trials.
43. Taking of Testimony:
(a) Form.
(b) Abrogated
© Abrogated.
(d) Affirmation in Lieu of Oath.
(e) Evidence on Motions.
(f) interpreters.
44. Proof of Official Record:
(a) Authentication:
(1) Domestic.
(2) Foreign.
(b) Lack of Record.
© Other Proof.
44.1 Determination of Foreign Law.
45. Subpoena:
(a) For Attendance of Witnesses; Form; Issuance.
(b) For Production of Documentary Evidence.
© Service.
(d) Subpoena for Taking Depositions; Place of Ex-
amination.
(e) Subpoena for a Hearing or Trial.
(f) Contempt.
46. Exceptions Unnecessary.
47. Jurors.
(a) Examination of Jurors.
(b) Alternate Jurors.
48. Juries of Less than Twelve - Majority Verdict.
49. Special Verdicts and Interrogatories:
(a) Special Verdicts.
(b) General Verdict Accompanied by Answer to
Interrogatories.
50. Motion for a Directed Verdict and for Judgment
Notwithstanding the Verdict.
(a) Motion for Directed Verdict; When Made; Eff-
ect.
(b) Motion for Judgment Notwithstanding the Ver-
dict.
© Same: Conditional Rulings on Grant of Motion.
(d) Same; Denial of Motion.
51. Instructions to Jury; Objection.
52. Findings by the Court.
(a) Effect.
(b) Amendment.
53. Masters:
(a) Appointment and Compensation.
(b) Reference.
© Powers.
(d) Proceedings:
(1) Meetings.
(2) Witnesses.
(3) Statement of Accounts.
(e) Report:
(1) Contents and Filing.
(2) In Non-Jury Actions.
(3) In Jury Actions.
(4) Stipulation as to Findings.
(5) Draft Report.
(f) Application to Magistrate
VII
54. Judgments; Costs.
(a) Definition; Form.
(b) Judgment upon Multiple Claims or Involving
Multiple Parties.
© Demand for Judgment.
(d) Costs.
55. Default:
(a) Entry.
(b) Judgment:
(1) By the Clerk.
(2) By the Court.
© Setting Aside Default.
(d) Plaintiffs, Counterclaimants, Cross Claim-
ants.
(e) Judgment Against the United States.
56. Summary Judgment:
(a) For Claimant.
(b) For Defending Party.
© Motion and Proceedings thereon.
(d) Case Not Fully Adjudicated on Motion.
(e) Form of Affidavits; Further Testimony;
Defense Required.
(f) When Affidavits are Unavailable.
(g) Affidavits Made in Bad Faith.
57. Declaratory Judgments.
58. Entry of Judgment.
59. New Trials; Amendment of Judgments:
(a) Grounds.
(b) Time For Motion.
© Time for Serving Affidavits.
(d) On Initiative of Court.
(e) Motion to Alter or Amend a Judgment.
60. Relief from Judgment or Order;
(a) Clerical Mistakes.
(b) Mistakes; Inadvertence; Excusable Neglect;
Newly Discovered Evidence; Fraud, etc.
61. Harmless Error.
62. Stay of Proceedings to Enforce a judgment:
(a) Automatic Stay; Exceptions - Injunctions,
Receiverships and Patent Accountings.
(b) Stay on Motion for New Trial or for Judgment.
© Injunction Pending Appeal.
(d) Stay Upon Appeal.
(e) Stay in Favor of the United States or Agency
Thereof.
(f) Stay According to State Law.
(g) Power of Appellate Court not Limited.
(h) Stay of Judgment as to Multiple Claims or
Multiple Parties.
63. Disability of a Judge.
VIII. Provisional and Final Remedies
and Special Proceedings.
64. Seizure of Person or Property.
65. Injunctions:
(a) Preliminary Injunction:
(1) Notice.
(2) Consolidation of Hearing with Trial on
Merits.
(b) Temporary Restraining Order; Notice; Hear-
ing; Duration.
© Security.
(d) Form and Scope of Injunction or Restraining
Order.
(e) Employer and Employee; Interpleader; Consti-
tutional Cases.
65.1 Security: Proceedings Against Sureties.
66. Receivers Appointed by Federal Courts.
67. Deposit in Court.
68. Offer of Judgment.
69. Execution:
(a) In General
(b) Against Certain Public Officers.
70. Judgment for Specific Acts; Vesting Title.
71. Process In Behalf of and Against Persons Not Par-
ties.
71.A. Condemnation of Property:
(a) Applicability of Other Rules.
(b) Joinder of Properties.
© Complaint:
(1) Caption.
(2) Contents.
(3) Filing.
(d) Process:
(1) Notice; Delivery.
(2) Same; Form.
(3) Service of Notice.
(4) Return; Amendment.
(e) Appearance or Answer.
(f) Amendment of Pleadings.
(g) Substitution of Parties.
(h) Trial.
(i) Dismissal of Action:
(1) As of Right.
(2) By Stipulation.
(3) By Order of the Court.
(4) Effect.
(j) Deposit and Its Distribution.
(k) Condemnation Under a State's Power of Eminent
Domain.
(l) Costs.
72. Magistrates; Pretrial Matters.
(a) Nondispositive Matters.
(b) Dispositive Motions and Prisoner Petitions.
73. Magistrates; Pretrial Matters.
(a) Powers; Procedure.
(b) Consent.
© Normal Appeal Route.
(d) Optional Appeal Route.
74. Method of Appeal from Magistrate to District
Judge under Title 28, U.S.C. @636©(4) and Rule
73(d).
(a) When Taken.
(b) Notice of Appeal; Service.
© Stay Pending Appeal.
(d) Dismissal.
75. Proceedings on Appeal from Magistrate to District
Judge under Rule 73(d)
(a) Applicability.
(b) Record on Appeal.
© Time for Filing Briefs.
(d) Length and Form of Briefs.
(e) Oral Argument.
76. Judgment of the District Judge on the Appeal
under Rule 73(d) and Costs.
(a) Entry of Judgment.
(b) Stay of Judgments.
© Costs.
IX. Appeals [Abrogated]
X. District Courts and Clerks.
77. District courts and Clerks:
(a) District Courts Always Open.
(b) Trials and Hearings; Orders in Chambers.
© Clerk's Office and Orders by Clerk.
(d) Notice of Orders or Judgments.
78. Motion Day.
79. Books and Records Kept by the Clerk and Entries
Therein.
(a) Civil Docket.
(b) Civil Judgments and Orders.
© Indices; Calendars.
(d) Other Books and Records of the Clerk.
80. Stenographer, Stenographic Report or Transcript as
Evidence.
(a) Abrogated.
(b) Abrogated.
© Stenographic Report or Transcript as Evidence.
XI. General Provisions.
81. Applicability in General:
(a) To What Proceedings Applicable.
(b) Scire Facias and Mandamus.
© Removed Actions.
(d) Abrogated.
(e) Law Applicable.
(f) References to Officer of the United States.
82. Jurisdiction and Venue Unaffected.
83. Rules by District Courts.
84. Forms.
85. Title.
86. Effective Date:
(a) Effective Date of Original Rules.
(b) Effective Date of Amendments.
© Effective Date of Amendments.
(d) Effective Date of Amendments.
(e) Effective Date of Amendments.
I. SCOPE OF RULES - ONE FORM OF ACTION.
Rule 1. Scope 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 to secure the just, speedy, and inexpensive
determination of every action.
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. Process.
(a) Summons: Issuance. Upon the filing of the
complaint the clerk shall forthwith issue a summons and
deliver the summons to the plaintiff or the plaintiff's
attorney, who shall be responsible for prompt service of
the summons and a copy of the complaint. Upon request
of the plaintiff separate or additional summons shall
issue against any defendants.
(b) Same: Form. The summons shall be signed by the
clerk, be under the seal of the court, contain the name
of the court and the names of the parties, be directed
to the defendant, state the name and address of the
plaintiff's attorney, if any, otherwise the plaintiff's
address, and the time within which these rules require
the defendant to appear and defend, and shall notify the
defendant that in case of the defendant's failure to do
so judgment by default will be rendered against the
defendant for the relief demanded in the complaint.
When, under Rule 4(e), service is made pursuant to a
statute or rule of court of a state, the summons, or
notice, or rule of court of a state, the summons, or
notice, or order in lieu of summons shall correspond as
nearly as may be to that required by the statute or
rule.
© Service.
(1). Process, other than a subpoena or a summons and
complaint, shall be served by a United States marshal or
deputy United States marshal, or by a person specially
appointed for that purpose.
(2)(A). A summons and complaint shall, except as
provided in subparagraphs (B) and (C) of this paragraph,
be served by any person who is not a party and is not
less than 18 years of age.
(B). A summons and complaint shall, at the request
of the party seeking service or such party's attorney,
be served by a United States marshal or deputy United
States marshal, or by a person specially appointed by
the court for that purpose only _
(i) on behalf of a party authorized to proceed in
forma pauperis pursuant to TITLE 28, U.S.C. @1915, or of
a seaman authorized to proceed under Title 28, U.S.C.
1916.
(ii) on behalf of the United States or an officer
or agency of the United States, or
(iii) pursuant to an order issued by the court
stating that a United States marshal or deputy United
States marshal, or a person specially appointed for that
purpose, is required to serve the summons and complaint
in order that service be properly effected in that
particular action.
(C). A summons and complaint may be served upon a
defendant of any class referred to in paragraphs (1) or
(3) of subdivision (d) of this rule -
(i) pursuant to the law of the State in which the
district court is held for the service of summons or
other like process upon such defendant in an action
brought in the courts of general jurisdiction of that
State, or
(ii) by mailing a copy of the summons and of the
complaint (by first-class mail, postage prepaid) to the
person to be served, together with two copies of a
notice and acknowledgment conforming substantially to
form 18-A and a return envelope, postage prepaid,
addressed to the sender. If no acknowledgment of
service under this subdivision of this rule is received
by the sender within 20 days after the date of mailing,
service of such summons and complaint shall be made
under subparagraph (A) or (B) of this paragraph in the
manner prescribed by subdivision (d)(1) or (d)(3).
(D). Unless good cause is shown for not doing so
the court shall order the payment of the costs of
personal service by the person served if such person
does not complete and return within 20 days after
mailing, the notice and acknowledgment of receipt of
summons.
(E) The notice and acknowledgment of receipt of
summons and complaint shall be executed under oath or
affirmation.
(3) The court shall freely make special appointments
to serve summonses and complaints under paragraph (2)(b)
of this subdivision of this rule and all other process
under paragraph (1) of this subdivision of this rule.
(d) Summons and Complaint: Person to be Served. The
summons and complaint shall be served together. The
plaintiff shall furnish the person making service with
such copies as are necessary. Service shall be made as
follows:
(1) Upon an individual other than an infant or an
incompetent person, 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.
(2) Upon an infant or an incompetent person, by
serving the summons and complaint 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.
(3) Upon a domestic or foreign corporation or upon a
partnership or other unincorporated association which is
subject to suit under a common name, 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 the 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.
(4) Upon the United States, 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 and by 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 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 such officer or agency.
(5) Upon an officer or agency of the United States, by
serving a copy of the summons and of the complaint by
registered or certified mail to such officer or agency.
If the agency is a corporation the copy shall be
delivered as provided in paragraph (3) of this
subdivision of this rule.
(6) Upon a state or municipal corporation or other
governmental organization thereof subject to suit, by
delivering a copy of the summons and of the complaint
to a chief executive officer thereof 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.
(e) Summons: Service Upon Party Not Inhabitant of or
Found Within State. Whenever a statute of the United
States or an order of court thereunder provides for
service of a summons, or of a notice, or of an order in
lieu of summons upon a party not an inhabitant of or
found within the state in which the district court is
held, service may be made under the circumstances and in
the manner prescribed by the statute or order, or, if
there is no provision therein prescribing the manner of
service, in a manner stated in this rule. Whenever a
statute or rule of court of the state in which the
district court is held provides (1) for service of a
summons or of a notice, or of an order in lieu of
summons upon a party not an inhabitant of or found
within the state, or (2) for service upon or notice to
such a party to appear and respond or defend in an
action by reason of the attachment or garnishment or
similar seizure of the party's property located within
the state, service may in either case be made under the
circumstances and in the manner prescribed in the
statute or rule.
(f) Territorial Limits of Effective Service. All
process other than a subpoena may be served anywhere
within the territorial limits of the state in which the
district court is held, and, when authorized by a
statute of the United States or by these rules, beyond
the territorial limits of that state. In addition,
persons who are brought in as parties pursuant to Rule
14, or as additional parties to a pending action or a
counterclaim or cross-claim therein pursuant to Rule 19,
may be served in the manner stated in paragraphs (1)-(6)
of subdivision (d) of this rule at all places outside
the state but within the United States that are not more
than 100 miles from the place in which the action is
commenced, or to which it is assigned or transferred for
trial; and persons required to respond to an order of
commitment for civil contempt may be served at the same
places. A subpoena may be served within the territorial
limits provided in RUle 45.
(g) Return. The person serving the process shall make
proof of service thereof to the court promptly and in
any event within the time during which the person served
must respond to the process. If service is made by a
person other than a United States marshal or deputy
United States marshal, such person shall make affidavit
thereof. If service is made under subdivision
©(2)(C)(ii) of this rule, return shall be made by the
sender's filing with the court the acknowledgment
received pursuant to such subdivision. Failure to make
proof of service does not affect the validity of the
service.
(h) Amendment. At any time in its discretion and upon
such terms as it deems just,m the court may allow any
process or proof of service thereof to be amended,
unless it clearly appears that material prejudice would
result to the substantial rights of the party against
whom the process issued.
(i) Alternative Provisions for Service in a Foreign
Country.
(1) Manner. When the federal or state law referred to
in subdivision (e) of this rule authorizes service upon
a party not an inhabitant of or found within the state
in which the district court is held, and service is to
be effected upon the party in a foreign country, it is
also sufficient if service of the summons and complaint
is made: (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, when service in either case is
reasonably calculated to give actual notice; or (C) upon
an individual, by delivery to the individual
personally, and upon a corporation or partnership or
association, by delivery to an officer, a managing or
general agent; or (D) by 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 (E) as
directed by order of the court. Service under (C) or
(E) above may be made by any person who is not a party
and is not less than 18 years of age or who is
designated by order of the district court or by the
foreign court. On request, the clerk shall deliver the
summons to the plaintiff for transmission to the person
or the foreign court or officer who will make the
service.
(2) Return. Proof of service may be made as prescribed
by subdivision (g) of this rule, or by the law of the
foreign country, or by order of the court. When service
is made pursuant to subparagraph (1)(D) of this
subdivision, proof of service shall include a receipt
signed by the addressee or other evidence of delivery to
the addressee satisfactory to the court.
(j) Summons: Time Limit for Service. If a service of
the summons and complaint is not made upon a defendant
within 120 days after the filing of the complaint and
the party on whose behalf such service was required
cannot show good cause why such service was not made
within that period, the action shall be dismissed as to
that defendant with out prejudice upon the court's own
initiative with notice to such party or upon motion.
This subdivision shall not apply to service in a foreign
country pursuant to subdivision (i) of this rule.
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) Same: How Made. Whenever under these rules service
is required or permitted to be made upon a party
represented by an attorney the service shall be made
upon the attorney unless service upon the party is
ordered by the court. Service upon the attorney or upon
a party shall be made by delivering a copy to to the
attorney or party by mailing it to the attorney or party
at the attorney's or party's last known address or, if
no address is known, by leaving it with the clerk of the
court. Delivery of a copy within this rule means:
handing it to the attorney or to the party; or leaving
it at the attorney's or party's office with a clerk or
other person in charge thereof; or, if there is no one
in charge, leaving it in a conspicuous place therein;
or, if the office is closed or the person to be served
has no office, leaving it at the person's dwelling house
or usual place of abode with some person of suitable age
and discretion then residing therein. Service by mail
is complete upon mailing.
© 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. All papers after the complaint required
to be served upon a party shall be filed with the court
either before service or within a reasonable time
thereafter, but the court may on motion of a party or on
its own initiative order that depositions upon oral
examination and interrogatories, requests for documents,
requests for admission, and answers and responses
thereto not be filed unless on order of the court or for
use in the proceeding.
(e) Filing With the Court Defined. The filing of
pleadings and other papers with the court as required by
these rules shall be made by filing them with the clerk
of the 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.
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 all 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©, "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 i may not extend the time for
taking any action under Rules 50(b) and ©(2), 52(b),59
(b),(d) and (e), 60(b), and 74(a), except to the extent
and under the conditions stated in them.
© [Rescinded. Fed. 28, 1966, wdd. 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©,
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 Service by Mail. Whenever a
party has the right or is required to do some act or
take some proceedings within a prescribed period after
the service of a notice or other paper upon the party
and the notice or paper is served upon the party by
mail, 3 days shall be added to the prescribed period.
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.
© Demurrers, Pleas, Etc. Abolished. Demurrers,
pleas, and exceptions for insufficiency of a pleading
shall not be used.
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 party 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.
© 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 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.
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.
© 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 quasijudicial
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©, 38(e), 82, and the Supplemental Rules for Certain
Admiralty and Maritime Claims. 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. The reference in Title 28, U.S.C. section
1292(a) (3), admiralty and maritime claims within the
meaning of this subdivision (h).
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.
© 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; Sanctions.
Every pleading, motion, and other paper of 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. A party who is not
represented by an attorney shall sign the party's
pleading, motion, or other paper and state the party's
address. Except when otherwise specifically provided by
rule or statute, pleadings need not be verified or
accompanied by affidavit. The rule in equity that the
averments of an answer under oath must be overcome by
the testimony of two witnesses or of one witness
sustained by corroborating circumstances is abolished.
The signature of an attorney or party constitutes a
certificate by the signer that the signer has read the
pleading, motion, or other paper; that to the best of
the signer's knowledge, information, and belief formed
after reasonable inquiry it is well grounded in fact and
is warranted by existing law or a good faith argument
for the extension, modification, or reversal of existing
law, and that it is not interposed for any improper
purposes, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation.
If a pleading, motion, or other paper is not signed, it
shall be stricken unless it is signed promptly after the
omission is called to the attention of the pleader or
movant. If a pleading, motion, or other paper is signed
in violation of this rule, the court, upon the person
who signed it, a represented party, or an order to pay
to the other party or parties the amount of the
reasonable expenses incurred because of the filing of
the pleading, motion, or other paper, including a
reasonable attorney's fee.
Rule 12. Defenses and Objections - When and How Presented
-Pleading or Motion - Motion for Judgment on
the Pleadings.
(a) When Presented. A defendant shall serve an answer
within 20 days after the service of the summons and
complaint upon the defendants, except when service is
made under Rule 4(e) and a different time is prescribed
in the order of court under the statute of the United
States or in the statute or rule of court of the state.
A party served with a pleading stating a cross-claim
against that party shall serve an answer thereto within
20 days after the service upon that party. 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. The United States or an officer or agency
thereof shall serve an answer to the complaint or to a
cross-claim, or a reply to a counterclaim, within 60
days after the service upon the United States attorney
of the pleading in which the claim is asserted. The
service of a motion permitted under this rule alters
these periods of time as follows, unless a different
time is fixed by order to the court: (1) 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; (2) 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, (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 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.
© Motion for Judgment on the Pleadings. After the
pleadings are closed but within such time as not to
delay the trial, any party may moved 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 © 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 the 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 no 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 claim may be made in any
pleading permitted or 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.
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.
© 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 be 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 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.
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 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 defendant, shall make any defenses to the 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, the
claimant of 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.
© Admiralty and Maritime Claims. When a plaintiff
asserts an admiralty or maritime claim within the
meaning of Rule 9(h), the defendant or claimant, 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.
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
pleadings only by leave of the 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 grounds 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.
© Relation Back of Amendments. Whenever the claim or
defense asserted in the amended pleadings arose out of
the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, the
amendment relates back to the date of the original
pleading. An amendment changing the party against whom
a claim is asserted relates back if the foregoing
provision is satisfied and, within the period provided
by law for commencing the action against the party to be
brought in by amendment that party (1) has received such
notice of the institution of the action that the party
will not be prejudiced in maintaining his defense on the
merits, and (2) 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 the 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 clauses (1) and (2)
hereof 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.
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 judge, or a magistrate when authorized
by district court rule, shall, 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 and hear motions; and
(3) to complete discovery.
The scheduling order also may include
(4) the date or dates for conferences before trial, a
final pretrial conference, and trial; and
(5) any other matters appropriate in the
circumstances of the case
The order shall issue as soon as practicable but in
no event more than 120 days after filing of the
complaint. A schedule shall not be modified except by
leave of the judge or a magistrate when authorized by
district court rule upon a showing of good cause.
© Subjects to be Discussed at Pretrial Conferences.
The participants at any conference under this rule may
consider and take 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;
(5) 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;
(6) the advisability of referring matters to a
magistrate or master;
(7) the possibility of settlement or the use of
extrajudicial procedures to resolve the dispute.
(8) the form and substance of the pretrial order;
(9) the disposition of pending motions;
(10) the need for adopting special procedures for
managing potentially difficult for protracted actions
that may involve complex issues, multiple parties,
difficult legal questions, or unusual proof problems;
and
(11) such other matters as may aid in the 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.
(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.
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).
© 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 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.
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.
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.
© 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.
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 more of
the plaintiffs according to their respective rights to
relief, and against on 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.
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. sections 1335, 1397, and 2361. Actions under
those provisions shall be conducted in accordance with
these rules.
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, (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.
© Determination by Order Whether Class Actions to be
Maintained; Notice; Judgment; Actions Conducted
Partially or Class Actions.
(1) As soon as practicable after the commencement of
an action brought as a class action, the court shall
determine by order whether it is to be so maintained.
An order under this subdivision may be conditional, and
may be altered or amended before the decision on the
merits.
(2) In any class action maintained under subdivision
(b)(3), the court shall direct to the members of the
class the best notice practicable under the
circumstances, including individual notice to all
members who can be identified through reasonable effort.
The notice shall advise each member that (A) the court
will exclude the member from the class if the member so
requests by a specified date; (B) the judgment, whether
favorable or not, will include all members who do not
request exclusion, and (C) any member who does not
request exclusion may, if the member desires, enter an
appearance through counsel.
(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 ©(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 al 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) Dismissal or Compromise. A class 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 all members of the class in
such manner as the court directs.
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, the notice of the proposed
dismissal or compromise shall be given to shareholders
or members in such manner as the court directs.
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).
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.
© 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. When the
constitutionality of an act of Congress affecting the
public interest is drawn in question in any action to
which the United States or an officer, agency, or
employee thereof is not a party, the court shall notify
the Attorney General of the United States as provided in
Title 28. U.S.C. section 2403.
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.
© 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
an 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.
V. DEPOSITIONS AND DISCOVERY.
Rule 26. General Provisions Governing Discovery.
(a) Discovery Methods. 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, 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, which is relevant to the
subject matter involved in the pending action, whether
it relates to the claim or defense of the party seeking
discovery or to the claim or defense of any other 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 ground for objection that the information sought
will be inadmissible at the trial if the information
sought appears reasonably calculated to lead to the
discovery of admissible evidence.
The frequency or extent of use of the discovery
methods set forth in subdivision (a) shall be limited by
the court if it determines that: (1) 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 discovery is unduly burdensome or
expensive, taking into account the needs of the case,
the amount in controversy, limitations on the parties'
resources, and the importance of the issues at stake in
the litigation. The court may act upon its own
initiative after reasonable notice or pursuant to a
motion under subdivision ©.
(2) Insurance Agreements. A party may obtain discovery
of the existence and contents of 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.
Information concerning the insurance agreement is not by
reason of disclosure admissible in evidence at trial.
For purposes of this paragraph, an application for
insurance shall not be treated as part of an insurance
agreement.
(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 Preparations; Experts. Discovery of facts
known and opinions held by experts, otherwise
discoverable under the provisions of subdivision (b)(1)
of this rule and acquired or developed in anticipation
of litigation or for trial, may be obtained only as
follows:
(A)(i) A party may through interrogatories require any
other party to identify each person whom the other party
expects to call as an expert witness at trial, to state
the subject matter on which the expert is expected to
testify, and to state the substance of the facts and
opinions to which the expert is expected to testify and
a summary of the grounds for each opinion. (ii) Upon
motion, the court may order further discovery by other
means, subject to such restrictions as to scope and such
provisions, pursuant to subdivision (b)(4)(C) of this
rule, concerning fees and expenses as the court may deem
appropriate.
(B) A party may 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 subdivisions (b)(4)(A)(ii) and
(b)(4)(B) of this rule; 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.
©. Protective Orders. Upon motion by a party or by
the person from whom discovery is sought, 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 discovery not be
had; (2) that the 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 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 disclosed or be disclosed
only in a designated way; (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 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) Sequence and Timing of Discovery. 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, shall not
operate to delay any other party's discovery.
(e) Supplementation of Responses. A party who has
responded to a request for discovery with a response
that was complete when made is under no duty to
supplement the response to include information
thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement
the response with respect to any question directly
addressed to (A) the identity and location of persons
having knowledge of discoverable matters, and (B) the
identity of each person expected to be called as an
expert witness at trial, the subject matter on which the
person is expected to testify and the substance of the
person's testimony.
(2) A party is under a duty seasonably to amend a prior
response if the party obtains information upon the basis
of which (A) the party knows that the response was
incorrect when made, or (B) the party knows that the
response though correct when made is no longer true and
the circumstances are such that a failure to amend the
response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by
order of the court, agreement of the parties, or at any
time prior to trial through new requests for
supplementation of prior responses.
(f) Discovery conference. At any time after
commencement of an action the court may direct the
attorneys for the parties to appear before it for a
conference on the subject of discovery. The court shall
do so upon motion by the attorney for any party if the
motion includes:
(1) A statement of the issues as they then appear.
(2) A proposed plan and schedule of discovery.
(3) Any limitations proposed to be placed on discovery.
(4) Any other proposed orders with respect to
discovery; and
(5) A statement showing that the attorney making the
motion has made a reasonable effort to reach agreement
with opposing attorneys on the matters set forth in the
motion. Each party and each party's attorney are under a
duty to participate in good faith in the framing of a
discovery plan if a plan is proposed by the attorney for
any party. Notice of the motion shall be served on all
parties. Objections or additions to matters set forth
in the motion shall be served not later than 10 days
after service of the motion.
Following the discovery conference, the court shall
enter an order tentatively identifying the issues for
discovery purposes, establishing a plan and schedule for
discovery, setting limitations on discovery, if any; and
determining such other matters, including the allocation
of expenses, as are necessary for the proper management
of discovery in the action. An order may be altered or
amended whenever justice so requires.
Subject to the right of a party who properly moves for
a discovery conference to prompt convening of the
conference, the court may combine the discovery
conference with a pretrial conference authorized by Rule
16.
(g) Signing of Discovery Requests, Responses and
Objections. Every request for discovery or response or
objection thereto 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. A party who is not represented by an
attorney shall sign the request, response, or objection
and state the party's address. The signature of the
attorney or party constitutes a certification that the
signer has read the request, response, or objection, and
that to the best of the signer's knowledge, information,
and belief formed after a reasonable inquiry it is: (1)
consistent with these rules and warranted by existing
law or a good faith argument for the extension,
modification, or reversal of existing law; (2) not
interposed for any improper purpose, such as to harass
or to cause unnecessary delay or needless increase in
the cost of litigation; and (3) 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.
If 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 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.
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. The petitioner shall
thereafter serve a notice upon each person named in the
petition as an expected adverse party, together with a
copy of the petition, stating that the petitioner will
apply to the court, at a time and place named therein,
for the order described in the petition. At least 20
days before the date of hearing the notice shall be
served either within or without the district or state in
the manner provided in Rule 4(d) for service of
summons, but if such service cannot with due diligence
be made upon any expected adverse party named in the
petition, the court may make such order as is just for
service by publication or otherwise, and shall appoint
for persons not served in the manner provided in Rule
4(d), an attorney who shall represent them, and, in case
they are not otherwise represented, shall cross-examine
the deponent. If any expected adverse party is a minor
or incompetent the provisions of Rule 17© apply.
(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 Depositions. 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 taking 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.
© Perpetuation by Actions. This rule does not limit
the power of a court to entertain an action to
perpetuate testimony.
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. In a foreign country,
depositions may be taken (1) on notice before a person
authorized to administer oaths in the place in which the
examination is held, either by the law thereof or by the
law of the United States, or (2) 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, or (3)
pursuant to a letter rogatory. A commission or a letter
rogatory shall be issued on application and notice and
on terms that are just and appropriate. It is no
requisite to the issuance of a commission or a letter
rogatory that the taking of the deposition in any other
manner is impracticable or inconvenient; and both a
commission and a letter rogatory 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 rogatory may be
addressed "To the Appropriate Authority in [here name
the country]." Evidence obtained in response to a letter
rogatory need not be excluded merely for the reason that
it is not a verbatim transcript or that the testimony
was not taken under oath or for any similar departure
from the requirements for depositions taken within the
United States under these rules.
© 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.
Rule 29. Stipulations Regarding Discovery Procedure.
Unless the court orders otherwise, 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 the procedures
provided by these rules for other methods of discovery,
except that stipulations extending the time provided in
Rules 33,34, and 36 for responses to discovery may be
made only with the approval of the court.
Rule 30. Depositions Upon Oral Examination.
(a) When Depositions May be Taken. After commencement
of the action, any party may take the testimony of any
person, including a party, by deposition upon oral
examination. Leave of court granted with or without
notice, must be obtained only if the plaintiff seeks to
take a deposition prior to the expiration of 30 days
after service of the summons and complaint upon any
defendant or service made under Rule 4(e), except that
leave is not required (1) if a defendant has served a
notice of taking deposition or otherwise sought
discovery or (2) if special notice is given as provided
in subdivision (b)(2) of this rule. The attendance of
witnesses may be compelled by subpoena as provided in
Rule 45. The deposition of a person confined in prison
may be taken only by leave of court on such terms as the
court prescribes.
(b) Notice of Examination; General Requirements.
Special Notice; Non=Stenographic Recording; Production
of Documents and Things; Deposition of Organizations;
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 times and place for taking
the deposition and the name and address of each 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) Leave of court is not required for the taking of a
deposition by the plaintiff if the notice (A) states
that the person to be examined is about to go out of the
district where the action is pending and more than 100
miles from the place of trial, or is about to go out of
the United States, or is bound on a voyage to sea, and
will be unavailable for examination unless the person's
deposition is taken before expiration of the 30-day
period, and (B) sets forth facts to support the
statement. The plaintiff's attorney shall sign the
notice, and the attorney's signature constitutes a
certification by the attorney that to the best of the
attorney's knowledge, information, and belief the
statement and supporting facts are true. The sanctions
provided by Rule 11 are applicable to the certification.
If a party shows that when the party was served with
notice under this subdivision (b)(2) the party was
unable through the exercise of diligence to obtain
counsel to represent the party at the taking of the
deposition, the deposition may not be used against the
party.
(3) The court may for cause shown enlarge or shorten
the time for taking the deposition.
(4) The parties may stipulate in writing or the court
may upon motion order that the testimony at a deposition
be recorded by other than stenographic means. The
stipulation or order shall designate the person before
whom the deposition shall be taken, the manner of
recording, preserving and filing the deposition, and may
include other provisions to assure that the recorded
testimony will be accurate and trustworthy. A party may
arrange to have a stenographic transcription made at the
party's own expense. Any objection under subdivisions
© any changes made by the witness, the witness'
signature identifying the deposition as the witness' own
or the statement of the officer that is required if the
witness does not sign, as provided in subdivision (e),
and the certification of the officer required by
subdivision (f) shall be set forth in a writing to
accompany a deposition recorded by non-stenographic
means.
(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 the examination is requested. In the 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. For the purposes of this rule and Rule
28(a), 37(a)(1), 37(b)(1) and 45(d), a deposition taken
by telephone is taken in the district and at the place
where the deponent is to answer questions propounded to
the deponent.
© 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. THe officer before whom the deposition is to
be taken shall put the witness on oath 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 means ordered
in accordance with subdivision (b)(4) of this rule. If
requested by one of the parties, the testimony shall be
transcribed. All objections made at the time of the
examination to the qualifications of the officer taking
the deposition, or to the manner of taking it, or to the
evidence presented, or to the conduct of any party, and
any other objection to the proceedings, shall be noted
by the officer upon the deposition. Evidence objected
to shall be 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) Motion to Terminate or Limit Examination. At any
time during the taking of the 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©. If the order made terminates the examination, it
shall 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 shall 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) Submission to Witness; Changes; Signing. When the
testimony is fully transcribed the deposition shall be
submitted to the witness for examination and shall be
read to or by the witness, unless such examination and
reading are waived by the witness and by the parties.
Any changes in form or substance which the witness
desires to make shall be entered upon the deposition by
the officer with a statement of the reasons given by the
witness for making them. THe deposition shall then be
signed by the witness, unless the parties by stipulation
waive the signing or the witness is ill or cannot be
found or refuses to sign. If the deposition is not
signed by the witness within 30 days of its submission
to the witness, the officer shall sign it and state on
the record the fact of the waiver or of the illness or
absence of the witness or the fact of the refusal to
sign together with the reason, if any, given therefor,
and the deposition may then be used as fully as though
signed unless on a motion to suppress under Rule
32(d)(4) the court holds that the reasons given for the
refusal to sign require rejection of the deposition in
whole or in part.
(f) Certification and Filing by Officer; Exhibits;
Copies; Notice of Filing. (1) The officer shall certify
on the deposition that the witness was duly sworn by the
officer and that the deposition is a true record of the
testimony given by the witness. Unless otherwise
ordered by the court, the officer shall then securely
seal the deposition in an envelope indorsed with the
title of the action and marked "Deposition of [here
insert name of witness]" and shall promptly file it with
the court in which the action is pending or send it by
registered or certified mail to the clerk thereof for
filing.
Documents and things produced for inspection during the
examination of the witness, shall, 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) Upon payment of reasonable charges therefor, the
officer shall furnish a copy 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 Subpoenas; 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.
Rule 31. Depositions Upon Written Questions.
(a) Serving Questions; Notice. After commencement of
the action, any party may take the testimony of any
person, including a party, by deposition upon written
questions. The attendance of witnesses may be compelled
by the use of subpoena as provided in Rule 45. The
deposition of a person confined in prison may be taken
only by leave of court on such terms as the court
prescribes.
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. 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).
Within 30 days after the notice and written questions
are served, a party may serve cross questions upon all
other parties. Within 10 days after being served with
cross questions, a party may serve redirect questions
upon all other parties. Within 10 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©,(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.
© Notice of Filing. When the deposition is filed the
party taking it shall promptly give notice thereof to
all other parties.
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, directory,
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; (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.
(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.
? © Abrogated.
(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 objections 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 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.
Rule 33. Interrogatories to Parties.
(a) Availability; Procedures for Use. Any party may
serve upon any other party written interrogatories to be
answered by the party written interrogatories 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 fuuch information as is
available to the party. Interrogatories may, without
leave of court, be served upon the plaintiff after
commencement of the action and upon any other party with
or after service of the summons and complaint upon that
party.
Each interrogatory shall be answered separately and
fully in writing under oath, unless it is objected to,
in which event the reasons for objection shall be stated
in lieu of an answer. The answers are to be signed by
the person making them, and the objections signed by the
attorney making them. 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, except that a
defendant may serve answers or objections within 45 days
after service of the summons and complaint upon that
defendant. The court may allow a shorter or longer
time. The party submitting the interrogatories may move
for an order under Rule 37(a) with respect to any
objections to or other failure to answer an
interrogatory.
(b) Scope. User at Trial. Interrogatories may relate
to any matter which can be inquired into under Rule
26(b), 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.
© Option to Produce Business Records. Where the
answer to an interrogatory may be derived or ascertained
from the business records 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.
Rule 34. Production of Documents and Things and Entry
? Upon Land for Inspectioher 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 and copy, any designated documents including
writings, drawings, graphs, charts, photographic,
phonorecords, and other data compilations from which
information can be obtained, translated, if necessary by
the respondent through detection devices into reasonably
usable form, or to inspect and copy, test, or sample any
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 may, without leave of
court, be served upon the plaintiff after commencement
of the action and upon any other party with or after
service of the summons and complaint upon that party.
The request shall set forth the items to be inspected
either by individual item or by category, and describe
each item and category with reasonable particularity.
The request shall specify a reasonable time, place, and
manner of making the inspection and performing the
related acts.
The party upon whom the request is served shall serve a
written response within 30 days after the service of the
request, except that a defendant may serve a response
within 45 days after service of the summons and
complaint upon the defendant. THe court may allow a
shorter or longer time. 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, in which event the
reasons for objections to or other failure to respond to
the request or any part thereof, or any failure to
permit inspection as requested.
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.
© Persons No Parties. This rule does not preclude an
independent action against a person not a party for
production of documents and things and permission to
enter upon land.
Rule 35. Physical and Mental Examination 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, itroversy, the court in
which the action is pending may order the party to
submit to a physical or mental examination by a
physician 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 Examining Physician.
(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
requestor a copy of a detailed written report of the
examining physician setting out the physician'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 such 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 a physician fails or
refuses to make a report the court may exclude the
physician's testimony if offered at the trial.
(2) By requesting an 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 examining physician or the
taking of a deposition of the physician in accordance
with the provisions of any other rule.
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) 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. The request may,
without leave of court, be served upon the plaintiff
after commencement of the action and upon any other
party with or after service of the summons and complaint
upon that party.
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, 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, but, unless the court
shortens the time, a defendant shall not be required to
serve answers or objections before the expiration of 45
days after service of the summons and complaint upon
that defendant. If the objection is made, the reasons
therefor shall 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©, deny the matter or set forth reasons why the
party cannot admit or deny it.
The party who has requested the admission 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 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 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.
Rule 37. Failure to Make or Cooperate in Discovery;
Sanctions.
(a) Motion for Order Compelling Discovery. A party,
upon reasonable notice to other parties and all persons
affected thereby, may apply for an order compelling
discovery as follows:
(1) Appropriate Court. An application for an order to
a party may be made to the court in which the action is
pending, or, on matters relating to a deposition, to the
court in the district where the deposition is being
taken. An application for an order to a deponent who is
not a party shall be made to the court in the district
where the deposition is being taken.
(2) Motion. 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 inspection in accordance with the request.
When taking a deposition on oral examination, the
proponent of the question may complete or adjourn the
examination before applying for an order.
If the court denies the motion in whole or in party,
it may make such protective order as it would have been
empowered to make on a motion made pursuant to Rule
26©.
(3) Evasive or Incomplete Answer. For purposes of this
subdivision an evasive or incomplete answer is to be
treated as a failure to answer.
(4) Award of Expenses of Motion. If the motion is
granted, the court shall, after opportunity for hearing,
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 obtaining the order,
including attorney's fees, unless the court finds that
the opposition to the motion was substantially justified
or that other circumstances make an award of expenses
unjust.
If the motion is denied, the court shall, after
opportunity for hearing, require the moving party or the
attorney advising 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.
If the motion is granted in part and denied in part,
the court may apportion the reasonable expenses incurred
in relation to the motion among the parties and persons
in a just matter.
(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.
© Expenses on Failure to Admit. 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 (1) the request was held objectionable
pursuant Rule 36(a), or (2) the admission sought was of
no substantial importance, or (3) the party failing to
admit had reasonable ground to believe that the party
might prevail on the matter, or (4) 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 paragraphs (A),
(B), and (C) of subdivision (b)(2) of this rule. 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
applied for a protective order as provided by Rule
26©.
(e) Abrogated.
(f) Repealed
(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 framing of a
discovery plan by agreement as is 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.
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 serving 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. Such demand may be indorsed upon
a pleading of the party.
© 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 a demand
as required by this rule and to file it as required by
Rule 5(d) 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).
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 al issues.
© 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 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. After the plaintiff, in an action tried by
the court without a jury, has completed the presentation
of evidence, the defendant, without waiving the right to
offer evidence in the event the motion is not granted,
may move for a dismissal on the ground that upon the
facts and the law the plaintiff has shown no right to
relief. The court as trier of the facts may then
determine them and render judgment against the plaintiff
or may decline to render any judgment until the close of
all the evidence. If the court renders judgment on the
merits against the plaintiff, the court shall make
findings as provided in Rule 52(a). 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.
© 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.
Rule 43. Taking of Testimony.
(a) Form. In all trials the testimony of witnesses
shall be taken orally in open court, unless otherwise
provided by an Act of Congress or by these rules, the
Federal Rules of Evidence, or other rules adopted by the
Supreme Court.
(b) Abrogated, © Abrogated.
(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 deposition.
(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.
Rule 44. Proof of Official Record.
(a) Authentication.
(1) Domestic. An official record kept within the
United States, or any state, district, commonwealth,
territory, or insular possession thereof, or within the
Panama Canal Zone, the trust Territory of the Pacific
Islands, or the Ryukyu Islands, or an entry therein,
when admissible for any purpose, may be evidenced by an
official publication thereof 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,
consul, 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.
(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)
I1) 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.
© 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.
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.
Rule 45. Subpoena.
(a) For Attendance of Witnesses; Form; Issuance.
Every subpoena shall be issued by the clerk under the
seal of the court, shall state the name of the court and
the title of the action, and shall command each person
to whom it is directed to attend and give testimony at a
time and place therein specified. The clerk shall issue
a subpoena or a subpoena for the production of
documentary evidence, signed and sealed but otherwise in
blank, to a party requesting it, who shall fill it in
before service.
(b) For Production of Documentary Evidence.
A subpoena may also command the person to whom it is
directed to produce the books, papers, documents, or
tangible things designated therein; but the court, upon
motion made promptly and in any event at or before the
time specified in the subpoena for compliance therewith,
may (1) quash or modify the subpoena if it is
unreasonable and oppressive or (2) condition denial of
the motion upon the advancement by the person in whose
behalf the subpoena is issued of the reasonable cost of
producing the books, papers, documents, or tangible
things.
© Service. A subpoena may be served by the marshal,
by a deputy marshal, or by any other 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 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.
(d) Subpoena for Taking Depositions; Place of
Examination.
(1) Proof of service of a notice to take a deposition
as provided in Rules 30(b) and 31(a) constitutes a
sufficient authorization for the issuance by the clerk
of the district court for the district in which the
deposition is to be taken of subpoenas for the persons
named or described therein. Proof of service may be
made by filing with the clerk of the district court for
the district in which the deposition is to be taken a
copy of the notice together with a statement of the date
and manner of service and of the names of the persons
served, certified by the person who made service. The
subpoena may command the person to whom it is directed
to produce and permit inspection and copying of
designated books, papers, documents, or tangible things
which constitute or contain matters within the scope of
the examination permitted by Rule 26(b), but in that
event the subpoena will be subject to the provisions of
Rule 26© and subdivision (b) of this rule.
The person to whom the subpoena is directed may, within
10 days after the service thereof or on or before the
time specified in the subpoena for compliance if such
time is less than 10 days after service, serve upon the
attorney designated in the subpoena written objection to
inspection or copying of any or all of the designated
materials. If objection is made, the party serving the
subpoena shall not be entitled to inspect and copy the
materials except pursuant to an order of the court from
which the subpoena was issued. The party serving the
subpoena may, if objection has been made, move upon
notice to the deponent for an order at any time before
or during the taking of the deposition.
(2) A person to whom a subpoena for the taking of a
deposition is directed may be required to attend at any
place within 100 miles from the place where the person
resides, is employed or transacts business in person, or
is served, or at such other convenient place as is fixed
by an order of court.
(e) Subpoena for a Hearing or Trial
(1) At the request of any party subpoenas for
attendance at a hearing or trial shall be issued by the
clerk of the district court for the district in which
the hearing or trial is held. A subpoena requiring the
attendance of a witness at a hearing or trial may be
served at any place within the district, or at any place
without the district that is within 100 miles of the
place of the hearing or trial specified in the subpoena,
or at a 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
where the district court is held. 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.
(2) A subpoena directed to a witness in a foreign
country shall issue under the circumstances and in the
manner and be served as provided in Title 28, U.S.C.
section 1783.
(f) Contempt. Failure by 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.
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 therefore; 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.
Rule 47. 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) Alternate Jurors. The court may direct that not
more than six jurors in addition to the regular jury be
called and impanelled to sit as alternate jurors.
Alternate jurors in the order in which they are called
shall replace jurors who, prior to the time the jury
retires to consider its verdict, become or are found to
be unable or disqualified to perform their duties.
Alternate jurors shall be drawn in the same manner,
shall have the same qualifications, shall be subject to
the same examination and challenges, shall take the same
oath, and shall have the same functions, powers,
facilities, and privileges as the regular jurors.
An alternate juror who does not replace a regular
juror shall be discharged after the jury retires to
consider its verdict. Each side is entitled to 1
peremptory challenge in addition to those otherwise
allowed by law if 1 or 2 alternate jurors are to be
impanelled, 2 peremptory challenges if 3 or 4 alternate
jurors are to be impanelled, and 3 peremptory
challenges if 5 or 6 alternate jurors are to be
impanelled. The additional peremptory challenges may
be used against an alternate juror only, and the other
peremptory challenges allowed by law shall not be used
against an alternate juror.
Rule 48. Juries of Less Than Twelve - Majority Verdict.
The parties may stipulate that the jury shall consist
of any number less than twelve or that a verdict or a
finding of a stated majority of the jurors shall be
taken as the verdict or finding of the jury.
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 any 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.
Rule 50. Motion for a Directed Verdict and for Judgment
Notwithstanding the Verdict.
(a) Motion for Directed Verdict; When Made; Effect. A
party who moves for a directed verdict at the close of
the evidence offered by an opponent may offer evidence
in the event that the motion is not granted, without
having reserved the right so to do and to the same
extent as if the motion had not been made. A motion for
a directed verdict which is not granted is not a waiver
of trial by jury even though all parties to the action
have moved for directed verdicts. A motion for a
directed verdict shall state the specific grounds
therefor. The order of the court granting a motion for
a directed verdict is effective without any assent of
the jury.
(b) Motion for Judgment Notwithstanding the Verdict.
Whenever a motion for a directed verdict made at the
close of all the evidence is denied or for any reason is
not granted, the court is deemed to have submitted the
action to the jury subject to a later determination of
the legal questions raised by the motion. Not later
than 10 days after entry of judgments, a party who has
moved for a directed verdict may move to have the
verdict and any judgment entered thereon set aside and
to have judgment entered in accordance with the party's
motion for a directed verdict; or if a verdict was not
returned such party, within 10 days after the jury has
been discharged, may move for judgment in accordance
with the party's motion for a directed verdict. A
motion for a new trial may be joined with this motion,
or a new trial may be prayed for in the alternative. If
a verdict was returned the court may allow the judgment
to stand or may reopen the judgment and either order a
new trial or direct the entry of judgment as if the
requested verdict had been directed. If no verdict was
returned the court may direct the entry of judgment as
if the requested verdict had been directed or may order
a new trial.
© Same: Conditional Rulings on Grant of Motion.
(1) If the motion for judgment notwithstanding the
verdict, provided for in subdivision (b) of this rule,
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 generated 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) The party whose verdict has been set aside or
motion for judgment notwithstanding the verdict may
serve a motion for a new trial pursuant to Rule 59 not
later than 10 days after entry of the judgment
notwithstanding the verdict.
(d) Same: Denial Motion. If the motion for judgment
notwithstanding the verdict 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 notwithstanding the
verdict. 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.
Rule 51. Instructions to Jury: Objection
At the close of the evidence or at such earlier time
during the trial as the court reasonably directs, any
party may file written requests that the court instruct
the jury on the law as set forth in the requests. The
court shall inform counsel of its proposed action upon
the requests prior to their arguments to the jury. The
court, at its election, may instruct the jury before or
after argument, or both. No party may assign as error
the given or the failure to give an instruction unless
that party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter
objected to and the grounds of the objection.
Opportunity shall be given to make the objection out of
the hearing of the jury.
Rule 52. Findings by the Court.
(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 the 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 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 Rule 41(b).
(b) Amendment. Upon motion of a party made not 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 be made with a
motion for a new trial pursuant to Rule 59. When
findings of fact are made in actions tried by the court
without a jury, the question of the sufficiency of the
evidence to support the findings may thereafter be
raised whether or not the party raising the question has
made in the district court an objection to such findings
or has made a motion to amend them or a motion for
judgment.
Rule 53. Masters.
(a) Appointment and Compensation. The court in which
any action is pending may appoint a special master
therein. As used in these rules the word "master"
includes a referee, an auditor, an examiner, and an
assessor. The compensation to be allowed to a master
shall be fixed by the court, and shall be charged upon
such of the parties or paid out of any fund or subject
matter of the action, which is in the custody and
control of the court as the court may direct; provided
that this provision for compensation shall not apply
when a United States magistrate is designated to serve
as a master pursuant to Title 28, U.S.C. section
636(b)(2). The master shall not retain the master's
report as security for the master's compensation; but
when the party ordered to pay the compensation allowed
by the court does not pay it after notice and within the
time prescribed by the court, the master is entitled to
a writ of execution against the delinquent party.
(b) Reference. A reference to a master shall be the
exception and not the rule. In actions to be tried by a
jury, a reference shall be made only when the issues are
complicated ;in actions to be tried without a jury, save
in matters of account and of difficult computation of
damages, a reference shall be made only upon a showing
that some exceptional condition requires it. Upon the
consent of the parties, a magistrate may be designated
to serve as a special master without regard to the
provisions of this subdivision.
© Powers. The order of reference to the master may
specify or limit the master's powers and may direct the
master to report only upon particular issues or to do or
perform particular acts or to receive and report
evidence only and may fix the time and place for
beginning and closing the hearings and for the filing of
the master's report. Subject to the specifications and
limitations stated in the order, the master has and
shall exercise the power to regulate all proceedings in
every hearing before the master and to do al acts and
take all measures necessary or proper for the efficient
performance of the master;s duties under the order. The
master may require the production before the master of
evidence upon all matters embraced in the reference,
including the production of all books, papers, vouchers,
documents, and writings applicable thereto. The master
may rule upon the admissibility of evidence unless
otherwise directed by the order of reference and has the
authority to put witnesses on oath and may examine them
and may call the parties to the action and examine them
upon oath. When a party so requests, the master shall
make a record of the evidence offered and excluded in
the same manner and subject to the same limitations as
provided in the Federal Rules of Evidence for a court
sitting without a jury.
(d) Proceedings.
(1) Meetings. When a reference is made, the clerk
shall forthwith furnish the master with a copy of the
order of reference. Upon receipt thereof unless the
order of reference otherwise provides, the master shall
forthwith set a time and place for the first meeting of
the parties or their attorneys to be held within 20 days
after the date of the order of reference and shall
notify the parties or their attorneys. It is the duty
of the master to proceed with all reasonable diligence.
Either party, on notice to the parties and master, may
apply to the court for an order requiring the master to
speed the proceedings and to make the report. If a
party fails to appear at the time and place appointed,
the master may proceed ex parte or, in the master's
discretion, adjourn the proceedings to a future day,
giving notice to the absent party of the adjournment.
(2) Witnesses. The parties may procure the attendance
of witnesses before the master by the issuance and
service of subpoenas as provided in Rule 45. If without
adequate excuse a witness fails to appear or give
evidence, the witness may be punished as for contempt
and be subjected to the consequences, penalties, and
remedies provided in Rules 37 and 45.
(3) Statement of Accounts. When matters of accounting
are in issue before the master, the master may prescribe
the form in which the accounts shall be submitted and in
any proper case may require or receive in evidence a
statement by a certified public accountant who is called
as a witness. Upon objection of a party to any of the
items thus submitted or upon a showing that the form of
statement is insufficient, the master may require a
different form of statement to be furnished, or the
accounts or specific items thereof to be proved by oral
examination of the accounting parties or upon written
interrogatories or in such other manner as the master
directs.
(e) Report.
(1) Contents and Filing. The master shall prepare a
report upon the matters submitted to the master by the
order of reference and, if required to make findings of
fact and conclusions of law, the master shall set them
forth in the report. The master shall file the report
with the clerk of the court and in an action to be tried
without a jury, unless otherwise directed by the order
of reference, shall file with it a transcript of the
proceedings and of the evidence and the original
exhibits. The clerk shall forthwith mail to all parties
notice of the filing.
(2) In Non-Jury Actions. In an action to be tried
without a jury the court shall accept the master's
findings of fact unless clearly erroneous. Within 10
days after being served with notice of the filing of the
report any party may serve written objections thereto
upon the other parties. Application to the court for
action upon the report and upon objections thereto shall
be by motion and upon notice as prescribed in Rule 6(d).
The court after hearing may adopt the report or may
modify it or may reject it in whole or in part or may
receive further evidence or may recommit it with
instructions.
(3) In Jury Actions. In an action to be tried by a
jury the master shall not be directed to report the
evidence. The master's findings upon the issues
submitted to the master are admissible as evidence of
the matters found and may be read to the jury, subject
to the ruling of the court upon any objections in point
of law which may be made to the report.
(4) Stipulation as to Findings. The effect of a
master's report is the same whether or not the parties
have consented to the reference; but, when the parties
stipulate that a master's findings of fact shall be
final, only questions of law arising upon the report
shall thereafter be considered.
(5) Draft Report. Before filing the master's report a
master may submit a draft thereof to counsel for all
parties for the purpose of receiving their suggestions.
(f)[ Application to Magistrate]. A magistrate is
subject to this rule only when the order referring a
matter to the magistrate expressly provides that the
reference is made under this Rule. 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 from 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.
© 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. Except when express provision therefor is
made either in a statute of the United States or in
these rules, costs 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. 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.
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 if he 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 for, 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.
© 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©.
(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.
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.
© 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.
Rule 57. Declaratory Judgments.
The procedure for obtaining a declaratory judgment
pursuant to Title 28 U.S.C. section 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.
Rule 58. Entry of Judgment.
Subject to the provisions of Rule 54(b); (1) upon a
general verdict of a jury, or 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 clerk,
unless the court otherwise orders, shall forthwith
prepare, sign, and enter the judgment without awaiting
any direction by the court; (2) upon a decision by the
court granting other relief, or upon a special verdict
or a general verdict accompanied by answers to
interrogatories, the court, shall promptly approve the
form of the judgment, and the clerk shall thereupon
enter it. Every judgment shall be set forth on a
separate document. A judgment is effective only when so
set forth and when entered as provided in Rule 79(a).
Entry of the judgment shall not be delayed for the
taxing of costs. Attorneys shall not submit forms of
judgment except upon direction of the court, and these
directions shall not be given as a matter of course.
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. A motion for a new trial shall be
served not later than 10 days after the entry of
judgment.
© Time for Serving Affidavits. When a motion for new
trial is based upon affidavits they shall be served with
the motion. The opposing party has 10 days after such
service within which to serve opposing affidavits, which
period may be extended for an additional period not
exceeding 20 days either by the court for good cause
shown or by the parties by written stipulation. The
court may permit reply affidavits.
(d) On Initiative Court. Not later than 10 days after
entry of judgment the court of its own initiative may
order a new trial for any reason for which it might have
granted a new trial on motion of a party. After giving
the parties notice and an opportunity to be heard on the
matter, the court may grant a motion for a new trial,
timely served, for a reason not stated in the motion.
In either case, the court shall specify in the order the
grounds therefor.
(e) Motion to Alter or Amend a Judgment. A motion to
alter or amend the judgment shall be served not later
than 10 days after entry of the judgment.
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 suspended 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. section 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.
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 © 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).
© 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
evidence 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 a 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.
Rule 63. Disability of a Judge.
If by reason of death, sickness, or other disability,
a judge before whom an action has been tried is unable
to perform the duties to be performed by the court under
these rules after a verdict is returned or findings of
fact and conclusions of law are filed, then any other
judge regularly sitting in or assigned to the court in
which the action was tried may perform those duties; but
if such other judge is satisfied that such other judge
cannot perform those duties because such other judge did
not preside at the trial or for any other reasons, such
other judge may in such other judge's discretion grant a
new trial. VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL
PROCEEDINGS.
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
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 construed and applied as to
save to the parties any rights they may have not 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
certified 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 required.
© 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 actions affecting
employer and employee; or the provisions of Title 28,
U.S.C. section 2361, relating to preliminary injunctions
in actions of interpleader or in the nature of
interpleader, or Title 28, U.S.C. section 2284, relating
to actions required by Act of Congress to be heard and
determined by a district court of three judges.
Rule 65.1. Security; Proceedings Against Sureties.
Whenever these rules, including the Supplemental Rules
for Certain Admiralty and Maritime Claims, 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.
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.
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 the
party claims all or any part of the sum or thing. Money
paid into court under this rule shall be deposited and
withdrawn in accordance with the provisions of Title 28,
U.S.C. Sections 2041, and 2042; the act of June 26,
1934, c. 756, section 23, as amended (48 Stat. 1236, 58
Stat. 845), U.S.C., Title 31 section 725v; or any like
statute. The fund shall be deposited in an interest-
bearing instrument approved by the court.
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.
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. section 2006, or against an officer of Congress
in an action mentioned in the Act of March 3, 1875, ch.
130, section 8 (18 Stat. 401), U.S.C. Title 2, section
118, and when the court has given the certificate of
probable cause for the officer's property but the final
judgment shall be satisfied as provided in such
statutes.
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.
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.
© 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
interest to be acquired, and as to each separate piece
of property a designation of the defendants who have
been joined as owners 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 person 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, that the
uses for which the property is 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 from the defendants to whom
it is directed.
(3). Service of Notice.
(i) Personal Service. Personal service of the notice
(but without copies of the complaint) shall be made in
accordance with Rule 4© and (d) upon a defendant who
resides within the United States or its territories or
insular possessions and whose residence is known.
(ii) 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 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(g) and
(h).
(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
specially constituted tribunal any party may have a
trial by jury of the issue of just compensation by
filing a demand therefore 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 powers of a master provided
in subdivision © of Rule 53 and proceedings before it
shall be governed by the provisions of paragraphs (1)
and (2) of subdivison (d) of RUle 53. 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 paragraph (2) of subdivision (e) of Rule
53. 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) Except as otherwise provided in the notice or
stipulation of 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 the 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).
Rule 72. Magistrates, Pretrial Matters.
(a) Nondispositive Matters. A magistrate 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. The
district judge to whom the case is assigned shall
consider objections made by the parties, provided they
are served and filed within 10 days after the entry of
the order, and shall modify or set aside any portion of
the magistrate's order found to be clearly erroneous or
contrary to law.
(b) Dispositive Motions and Prisoner Petitions. A
magistrate 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, and a
record may be made of such other proceedings as the
magistrate deems necessary. The magistrate shall enter
in 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 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'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.
Rule 73. Magistrates; Trial by Consent and Appeal
Options.
(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 may exercise the authority provided by Title
28, U.S.C. section 636© and may conduct any or all
proceedings, including a jury or non jury trial, in a
civil case. A record of the proceedings shall be made
in accordance with the requirements of Title 28, U.S.C.
section 636©(7).
(b) Consent. When a magistrate 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 of civil
jurisdiction over the case, as authorized by Title 28,
U.S.C. section 636©. If, within the period specified
by local rule, the parties agree to a magistrate's
exercise of such authority, they shall execute and file
a joint form of consent or separate forms of consent
setting forth such election.
No district judge, magistrate, or other court official
shall attempt to persuade or induce a party to consent
to a reference of a civil matter to a magistrate under
this rule, nor shall a district judge or magistrate be
informed of a party's response to the clerk's
notification, unless all the parties have consented to
the referral of the matter to a magistrate.
The district judge, for good cause shown on the judge's
motion, or under extraordinary circumstances shown by a
party, may vacate a reference of a civil matter to a
magistrate under this subdivision.
© Normal Appeal Route. In accordance with Title 28,
U.S.C. section 636©(3), unless the parties otherwise
agree to the optional appeal route provided for in
subdivision (d) of this rule, appeal from a judgment
entered upon direction of a magistrate 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. In accordance with Title
28, U.S.C. section 636©(4), at the time of reference
to a magistrate, the parties may consent to appeal on
the record to a judge of the district court and
thereafter, by petition only, to the court of appeals.
Rule 74. Method of Appeal From Magistrate to District
Judge under Title 28, U.S.C. section 636©(4) and Rule
73(d).
(a) WHen Taken. When the parties have elected under
Rule 73(d) to proceed by appeal to a district judge from
an appealable decision made by a magistrate under the
consent provisions of Title 28. U.S.C. section
636©(4), an appeal may be taken from the decision of a
magistrate by filing with the clerk of the district
court a notice of appeal within 30 days of the date of
entry of the judgment appealed from; but if the United
States or an officer or agency thereof is a party, the
notice of appeal may be filed by any party within 60
days of such entry. If a timely notice of appeal is
filed by a party, any other party may file a notice of
appeal within 14 days thereafter, or within the time
otherwise prescribed by this subdivision, whichever
period last expires.
The running of the time for filing a notice of appeal
is terminated as to all parties by the timely filing of
any of the following motions with the magistrate by any
party, and the full time for appeal from the judgment
entered by the magistrate commences to run anew from
entry of any of the following orders: (10 granting or
denying a motion for judgment under Rule 50(b);
(2) granting or denying a motion under Rule 52(b) to
amend or make additional findings of fact, whether or
not an alteration of the judgment would be required if
the motion is granted; (3) granting or denying a motion
under Rule 59 to alter or amend the judgment (4) denying
a motion for a new trial under Rule 59.
An interlocutory decision or order by a magistrate
which, if made by a judge of the district court, could
be appealed under any provision of law, may be appealed
to a judge of the district court by filing a notice of
appeal within 15 days after entry of the decision or
order, provided the parties have elected to appeal to a
judge of the district court under Rule 73(d). An
appeal of such interlocutory decision or order shall not
stay the proceedings before the magistrate unless the
magistrate or judge shall so order.
Upon a showing of excusable neglect, the magistrate may
extend the time for filing a notice of appeal upon
motion filed not later than 20 days after the expiration
of the time otherwise prescribed by this rule.
(b) Notice of Appeal; Service. The notice of appeal
shall specify the party or parties taking the appeal,
designate the judgment, order or part thereof appealed
from, and state that the appeal is to a judge of the
district court. The clerk shall mail copies of the
notice to all other parties and note the date of mailing
in the civil docket.
© Stay Pending Appeal. Upon a showing that the
magistrate has refused or otherwise failed to stay the
judgment pending appeal to the district judge under Rule
73(d), the appellant may make application for a stay to
the district judge with reasonable notice to all
parties. The stay may be conditioned upon the filing in
the district court of a bond or other appropriate
security.
(d) Dismissal. For failure to comply with these rules
or any local rule or order, the district judge may take
such action as is deemed appropriate, including
dismissal of the appeal. The district judge also may
dismiss the appeal upon the filing of a stipulation
signed by all parties, or upon motion and notice by the
appellant.
Rule 75. Proceedings on Appeal from Magistrate to
District Judge under Rule 73(d).
(a) Applicability. In proceedings under Title 28,
section 636©, when the parties have previously elected
under Rule 73(d) to appeal to a district judge rather
than to the court of appeals, this rule shall govern the
proceedings on appeal.
(b) Record on Appeal
(1) Composition. The original papers and exhibits
filed with the clerk of the district court, the
transcript of the proceedings, if any, and the docket
entries shall constitute the record on appeal. In lieu
of this record the parties, within 10 days after the
filing of the notice of appeal, may file a joint
statement of the case showing how the issues presented
by the appeal arose and were decided by the magistrate,
and setting forth only so many of the facts averred and
proved or sought to be proved as are essential to a
decision of the issues presented.
(2) Transcript. Within 10 days after filing the notice
of appeal the appellant shall make arrangements for the
production of a transcript of such parts of the
proceedings as the appellants deem necessary. Unless
the entire transcript f such parts of the proceedings as
the appellant deems necessary. Unless the entire
transcript is to be included, the appellant, within the
time provided above, shall serve on the appellee and
file with the court a description of the parts of the
transcript which the appellant intends to present on the
appeal.If the appellee deems a transcript of other parts
of the proceedings to be necessary, within 10 days after
the service of the statement of the appellant, the
appellee shall serve on the appellant and file with the
court a designation of additional parts to be included.
the appellant shall promptly make arrangements for the
inclusion of all such parts unless the magistrate, upon
motion, exempts the appellant from providing certain
parts, in which case the appellee may provide for their
transcription.
(3) Statement in Lieu of Transcript. If no record of
the proceedings is available for transcription, the
parties shall, within 10 days after the filing of the
notice of appeal, file a statement of the evidence from
the best available means to be submitted in lieu of the
transcript. If the parties cannot agree they shall
submit a statement of their differences to the
magistrate for settlement.
© Time for Filing Briefs. Unless a local rule or
court order otherwise provides the following time limits
for briefs shall apply.
(1) The appellant shall served and file the appellant's
brief within 20 days after the filing of the transcript,
statement of the case, or statement of the evidence.
(2) The appellee shall serve and file the appellee's
brief within 20 days after service of the brief of the
appellant.
(3) The appellant may serve and file a reply brief
within 10 days after service of the brief of the
appellee.
(4) If the appellee has filed a cross-appeal, the
appellee may file a reply brief limited to the issues on
the cross-appeal within 10 days after service of the
reply brief of the appellant.
(d) Length and Form of Briefs. Briefs may be
typewritten. The length and form of briefs shall be
governed by local rule.
(e) Oral Argument. The opportunity for the parties to
be heard on oral argument shall be governed by local
rule.
Rule 76. Judgment of the District Judge on the Appeal
under Rule 73(d) and Costs.
(a) Entry of Judgment. When the parties have elected
under Rule 73(d) to appeal from a judgment of the
magistrate to a district judge, the clerk shall prepare,
sign, and enter judgment in accordance with the order or
decision of the district judge following an appeal from
a judgment of the magistrate, unless the district judge
directs otherwise. The clerk shall mail to all parties
a copy of the order or decision of the district judge.
(b) Stay of Judgments. The decision of the district
judge shall be stayed for 10 days during which time a
party may petition the district judge for rehearing, and
a timely petition shall stay the decision of the
district judge pending disposition of a petition for
rehearing. Upon the motion of a party to petition the
court of appeals for leave to appeal.
© Costs. Except as otherwise provided by law or
ordered by the district judge, costs shall be taxed
against the losing party; if a judgment of the
magistrate is affirmed in part or reversed in part, or
is vacated, costs shall be allowed only as ordered by
the district judge. the cost of the transcript, if
necessary for the determination of the appeal, and the
premiums paid for bonds to preserve rights pending
appeal shall be taxed as costs by the clerk.
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. section 7651-
7681. They do not apply to proceedings in bankruptcy or
proceedings in copyright under Title 17, U.S.C. except
in so far as they may be made applicable thereto by
rules promulgated by the Supreme Court of the United
States. They do not apply to mental health proceedings
in the United States District for the District of
Columbia.
(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 and has heretofore conformed to the practice in
civil actions. The writ of habeas corpus or order to
show cause, shall be directed to the person having
custody of the person detained. It shall be returned
within 3 days unless for good cause shown additional time
is allowed which in cases brought under 28 U.S.C.
section 2254 shall not exceed 40 days, and in all other
cases shall not exceed 20 days.
(3) In proceedings under Title 9, U.S.C., relating to
arbitration, or under the Act of May 20,1926, ch. 347,
section 9 (44 Stat. 585), U.S.C., Title 45, section 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 19, 1922, c. 57, section 2 (42 Stat.
388), U.S.C., title 7, section 292; or by the Act of
June 10, 1930, c. 436, section 7 (46 Stat. 584), as
amended, U.S.C., Title 7, section 499g©, 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, c. 742,
section 2 (48 Stat. 1214), U.S.C., Title 15, section
522, for instituting proceedings to review orders of the
Secretary of the Interior, or prescribed by the Act of
February 22, 1935, c. 18, section 5(49 Stat. 31),
U.S.C., Title 15, section 715d©, 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, c. 372, sections 9 and 10(49 Stat. 453), as
amended, U.S.C., Title 29, sections 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, sections 18,21 (44 Stat. 1434, 1436), as
amended, U.S.C., Title 33, sections 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, section 340 (66 Stat. 260), U.S.C.,
Title 8, section 1451, remain in effect.
(7) Abrogated.
(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.
© Removed Actions. These rules apply to civil
actions removed to the United States district courts
from the state courts and governs 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 20 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 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) Abrogated
(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, or the personal
or collector of internal revenue, or the personal
representative of a decreased district director or
collector of internal revenue.
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. section 1391-93.
Rule 83. Rules By District Courts
Each district court by action of a majority of the
judges thereof may from time to time, after giving
appropriate public notice and an opportunity to comment,
make and amend rules governing its practice not
inconsistent with these rules. A local rule so adopted
shall take effect upon the date specified by the
district court and shall remain in effect unless amended
by the district court or abrogated by the judicial
council of the circuit in which the district is located.
Copies of rules and amendments so made by any district
court 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. In all cases not provided for by any rule, the
district judges and magistrates may regulate their
practice in any manner not inconsistent with these rules
or those of the district in which they act.
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.
Rule 85. Title.
These rules may be known and cited as the Federal Rules
of Civil Procedure.
Rule 86. Effective Date.
(a) [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.
(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.
© 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 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, 1863. 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.
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