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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© Rescinded.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. Parti | |
