FEDERAL RULES
OF
CIVIL PROCEDURE
WITH FORMS
DECEMBER 1, 2008
U
NUM
E PLURIBU
S
Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
110TH CONGRESS
" COMMITTEE PRINT ! No. 6
2nd Session
FEDERAL RULES
OF
CIVIL PROCEDURE
WITH FORMS
DECEMBER 1, 2008U
NUM
E PLURIBU
S
Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2008
For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: (202) 512­1800 Fax: (202) 512­2250
Mail: Stop SSOP, Washington, DC 20402­0001
COMMITTEE ON THE JUDICIARY
ONE HUNDRED TENTH CONGRESS
JOHN CONYERS, JR., Michigan, Chairman
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. ``BOBBY'' SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
LINDA T. SA´ NCHEZ, California
STEVE COHEN, Tennessee
HANK JOHNSON, Georgia
BETTY SUTTON, Ohio
LUIS V. GUTIERREZ, Illinois
BRAD SHERMAN, California
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
LAMAR SMITH, Texas
F. JAMES SENSENBRENNER, JR., Wisconsin
HOWARD COBLE, North Carolina
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
CHRIS CANNON, Utah
RIC KELLER, Florida
DARRELL ISSA, California
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JIM JORDAN, Ohio
PERRY APELBAUM, Staff Director and Chief Counsel
SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel
(II)
FOREWORD
This document contains the Federal Rules of Civil Procedure together
with forms, as amended to December 1, 2008. The rules and
forms have been promulgated and amended by the United States
Supreme Court pursuant to law, and further amended by Acts of
Congress. This document has been prepared by the Committee in
response to the need for an official up-to-date document containing
the latest amendments to the rules.
For the convenience of the user, where a rule has been amended
a reference to the date the amendment was promulgated and the
date the amendment became effective follows the text of the rule.
The Committee on Rules of Practice and Procedure and the Advisory
Committee on the Federal Rules of Civil Procedure, Judicial
Conference of the United States, prepared notes explaining
the purpose and intent of the amendments to the rules. The Committee
Notes may be found in the Appendix to Title 28, United
States Code, following the particular rule to which they relate.
Chairman, Committee on the Judiciary.
DECEMBER 1, 2008.
(III)
(V)
AUTHORITY FOR PROMULGATION OF RULES
TITLE 28, UNITED STATES CODE
§ 2072. Rules of procedure and evidence; power to prescribe
(a) The Supreme Court shall have the power to prescribe general
rules of practice and procedure and rules of evidence for cases in
the United States district courts (including proceedings before
magistrate judges thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive
right. All laws in conflict with such rules shall be of no
further force or effect after such rules have taken effect.
(c) Such rules may define when a ruling of a district court is
final for the purposes of appeal under section 1291 of this title.
(Added Pub. L. 100­702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4648,
eff. Dec. 1, 1988; amended Pub. L. 101­650, title III, §§ 315, 321, Dec.
1, 1990, 104 Stat. 5115, 5117.)
§ 2073. Rules of procedure and evidence; method of prescribing
(a)(1) The Judicial Conference shall prescribe and publish the
procedures for the consideration of proposed rules under this sec-
tion.
(2) The Judicial Conference may authorize the appointment of
committees to assist the Conference by recommending rules to be
prescribed under sections 2072 and 2075 of this title. Each such
committee shall consist of members of the bench and the professional
bar, and trial and appellate judges.
(b) The Judicial Conference shall authorize the appointment of
a standing committee on rules of practice, procedure, and evidence
under subsection (a) of this section. Such standing committee
shall review each recommendation of any other committees so
appointed and recommend to the Judicial Conference rules of
practice, procedure, and evidence and such changes in rules proposed
by a committee appointed under subsection (a)(2) of this
section as may be necessary to maintain consistency and otherwise
promote the interest of justice.
(c)(1) Each meeting for the transaction of business under this
chapter by any committee appointed under this section shall be
open to the public, except when the committee so meeting, in
open session and with a majority present, determines that it is in
the public interest that all or part of the remainder of the meeting
on that day shall be closed to the public, and states the reason
for so closing the meeting. Minutes of each meeting for the transaction
of business under this chapter shall be maintained by the
committee and made available to the public, except that any portion
of such minutes, relating to a closed meeting and made available
to the public, may contain such deletions as may be necessary
to avoid frustrating the purposes of closing the meeting.
VI AUTHORITY FOR PROMULGATION OF RULES
(2) Any meeting for the transaction of business under this chapter,
by a committee appointed under this section, shall be preceded
by sufficient notice to enable all interested persons to at-
tend.
(d) In making a recommendation under this section or under
section 2072 or 2075, the body making that recommendation shall
provide a proposed rule, an explanatory note on the rule, and a
written report explaining the body's action, including any minority
or other separate views.
(e) Failure to comply with this section does not invalidate a rule
prescribed under section 2072 or 2075 of this title.
(Added Pub. L. 100­702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649,
eff. Dec. 1, 1988; amended Pub. L. 103­394, title I, § 104(e), Oct. 22,
1994, 108 Stat. 4110.)
§ 2074. Rules of procedure and evidence; submission to Congress;
effective date
(a) The Supreme Court shall transmit to the Congress not later
than May 1 of the year in which a rule prescribed under section
2072 is to become effective a copy of the proposed rule. Such rule
shall take effect no earlier than December 1 of the year in which
such rule is so transmitted unless otherwise provided by law. The
Supreme Court may fix the extent such rule shall apply to proceedings
then pending, except that the Supreme Court shall not
require the application of such rule to further proceedings then
pending to the extent that, in the opinion of the court in which
such proceedings are pending, the application of such rule in such
proceedings would not be feasible or would work injustice, in
which event the former rule applies.
(b) Any such rule creating, abolishing, or modifying an evidentiary
privilege shall have no force or effect unless approved by
Act of Congress.
(Added Pub. L. 100­702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649,
eff. Dec. 1, 1988.)
(VII)
HISTORICAL NOTE
The Supreme Court prescribes rules of civil procedure for the
district courts pursuant to section 2072 of Title 28, United States
Code, as enacted by Title IV ``Rules Enabling Act'' of Pub. L.
100­702 (approved Nov. 19, 1988, 102 Stat. 4648), effective December
1, 1988. Pursuant to section 2074 of Title 28, the Supreme Court
transmits to Congress (not later than May 1 of the year in which
a rule prescribed under section 2072 is to become effective) a copy
of the proposed rule. The rule takes effect no earlier than December
1 of the year in which the rule is transmitted unless otherwise
provided by law.
By act of June 19, 1934, ch. 651, 48 Stat. 1064 (subsequently 28
United States Code, § 2072), the Supreme Court was authorized to
prescribe general rules of civil procedure for the district courts.
The rules, and subsequent amendments, were not to take effect
until (1) they had been first reported to Congress by the Attorney
General at the beginning of a regular session and (2) after the
close of that session.
Under a 1949 amendment to 28 U.S.C., § 2072, the Chief Justice of
the United States, instead of the Attorney General, reported the
rules to Congress. In 1950, section 2072 was further amended so
that amendments to the rules could be reported to Congress not
later than May 1 each year and become effective 90 days after
being reported. Effective December 1, 1988, section 2072 was repealed
and supplanted by new sections 2072 and 2074, see first paragraph
of Historical Note above.
The original rules, pursuant to act of June 19, 1934, were adopted
by order of the Court on December 20, 1937, transmitted to Congress
by the Attorney General on January 3, 1938, and became effective
September 16, 1938 (308 U.S. 645; Cong. Rec., vol. 83, pt. 1,
p. 13, Exec. Comm. 905; H. Doc. 460 and H. Doc. 588, 75th Cong.)
Rule 81(a)(6) was abrogated by order of the Court on December
28, 1939, transmitted to Congress by the Attorney General on January
3, 1940, effective April 3, 1941 (308 U.S. 642; Cong. Rec., vol. 86,
pt. 1, p. 14, Exec. Comm. 1152).
Further amendments were adopted by the Court by order dated
December 27, 1946, transmitted to Congress by the Attorney General
on January 3, 1947, and became effective March 19, 1948 (329
U.S. 839; Cong. Rec., vol. 93, pt. 1, p. 41, Exec. Comm. 32; H. Doc.
46 and H. Doc. 473, 80th Cong.). The amendments affected Rules 6,
7, 12, 13, 14, 17, 24, 26, 27, 28, 33, 34, 36, 41, 45, 52, 54, 56, 58, 59, 60,
62, 65, 66, 68, 73, 75, 77, 79, 81, 84, and 86, and Forms 17, 20, 22, and
25.
Additional amendments were adopted by the Court by order
dated December 29, 1948, transmitted to Congress by the Attorney
General on January 3, 1949, and became effective October 20, 1949
(335 U.S. 919; Cong. Rec., vol. 95, pt. 1, p. 94, Exec. Comm. 24; H.
VIII HISTORICAL NOTE
Doc. 33, 81st Cong.). The amendments affected Rules 1, 17, 22, 24,
25, 27, 37, 45, 57, 60, 62, 65, 66, 67, 69, 72, 73, 74, 75, 76, 79, 81, 82, and
86, and Forms 1, 19, 22, 23, and 27.
Amendment to Rule 81(a)(7) and new Rule 71A and Forms 28 and
29 were adopted by the Court by order dated April 30, 1951, transmitted
to Congress on May 1, 1951, and became effective August 1,
1951 (341 U.S. 959; Cong. Rec., vol. 97, pt. 4, p. 4666, Exec. Comm.
414; H. Doc. 121, 82d Cong.).
Additional amendments were adopted by the Court by order
dated April 17, 1961, transmitted to Congress by the Chief Justice
on April 18, 1961, and became effective July 19, 1961 (368 U.S. 1009;
Cong. Rec., vol. 107, pt. 5, p. 6524, Exec. Comm. 821). The amendments
affected Rules 25, 54, 62, and 86, and Forms 2 and 19.
Additional amendments were adopted by the Court by order
dated January 21, 1963, transmitted to Congress by the Chief Justice
(374 U.S. 861; Cong. Rec., vol. 109, pt. 1, p. 1037, Exec. Comm.
267; H. Doc. 48, 88th Cong.), and became effective July 1, 1963, by
order of the Court dated March 18, 1963 (374 U.S. 861; Cong. Rec.,
vol. 109, pt. 4, p. 4639, Exec. Comm. 569; H. Doc. 48, pt. 2, 88th Cong.;
see also H. Doc. 67, 88th Cong.). The amendments affected Rules 4,
5, 6, 7, 12, 13, 14, 15, 24, 25, 26, 28, 30, 41, 49, 50, 52, 56, 58, 71A, 77, 79,
81, and 86, and Forms 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 18, 21, 22­A,
and 22­B, and added Forms 30, 31, and 32.
Additional amendments were adopted by the Court by order
dated February 28, 1966, transmitted to Congress by the Chief Justice
on the same day (383 U.S. 1029; Cong. Rec., vol. 112, pt. 4, p.
4229, Exec. Comm. 2094; H. Doc. 391, 89th Cong.), and became effective
July 1, 1966. The amendments affected Rules 1, 4, 8, 9, 12, 13,
14, 15, 17, 18, 19, 20, 23, 24, 26, 38, 41, 42, 43, 44, 47, 53, 59, 65, 68, 73,
74, 75, 81, and 82, and Forms 2 and 15, and added Rules 23.1, 23.2,
44.1, and 65.1, and Supplementary Rules A, B, C, D, E, and F for
certain Admiralty and Maritime claims. The amendments govern
all proceedings in actions brought after they became effective and
also all further proceedings in actions then pending, except to the
extent that in the opinion of the Court an application in a particular
action then pending would not be feasible or would work
injustice, in which event the former procedure applies.
In addition, Rule 6(c) of the Rules of Civil Procedure promulgated
by the Court on December 20, 1937, effective September 16,
1938; Rule 2 of the Rules for Practice and Procedure under section
25 of an act to amend and consolidate the acts respecting copyright,
approved March 4, 1909, promulgated by the Court on June
1, 1909, effective July 1, 1909; and the Rules of Practice in Admiralty
and Maritime Cases, promulgated by the Court on December
6, 1920, effective March 7, 1921, as revised, amended and supplemented,
were rescinded, effective July 1, 1966.
Additional amendments were adopted by the Court by order
dated December 4, 1967, transmitted to Congress by the Chief Justice
on January 15, 1968 (389 U.S. 1121; Cong. Rec., vol. 114, pt. 1,
p. 113, Exec. Comm. 1361; H. Doc. 204, 90th Cong.), and became effective
July 1, 1968. The amendments affected Rules 6(b), 9(h),
41(a)(1), 77(d), 81(a), and abrogated the chapter heading ``IX. Appeals''
and Rules 72­76, and Form 27.
Additional amendments were adopted by the Court by order
dated March 30, 1970, transmitted to Congress by the Chief Justice
IXHISTORICAL NOTE
on the same day (398 U.S. 977; Cong. Rec., vol. 116, pt. 7, p. 9861,
Exec. Comm. 1839; H. Doc. 91­291), and became effective July 1,
1970. The amendments affected Rules 5(a), 9(h), 26, 29 to 37, 45(d),
and 69(a), and Form 24.
On March 1, 1971, the Court adopted additional amendments,
which were transmitted to Congress by the Chief Justice on the
same day (401 U.S. 1017; Cong. Rec., vol. 117, pt. 4, p. 4629, Exec.
Comm. 341; H. Doc. 92­57), and became effective July 1, 1971. The
amendments affected Rules 6(a), 27(a)(4), 30(b)(6), 77(c), and
81(a)(2).
Further amendments were proposed by the Court in its orders
dated November 20 and December 18, 1972, and transmitted to Congress
by the Chief Justice on February 5, 1973 (409 U.S. 1132 and 419
U.S. 1133; Cong. Rec., vol. 119, pt. 3, p. 3247, Exec. Comm. 359; H.
Doc. 93­46). Although these amendments were to have become effective
July 1, 1973, Public Law 93­12 (approved March 30, 1973, 87
Stat. 9) provided that the proposed amendments ``shall have no
force or effect except to the extent, and with such amendments,
as they may be expressly approved by Act of Congress.'' Section
3 of Public Law 93­595 (approved January 2, 1975, 88 Stat. 1949) approved
the amendments proposed by the Court, to be effective
July 1, 1975. The amendments affected Rules 30(c), 43, and 44.1, and
abrogated Rule 32(c).
On April 29, 1980, the Court adopted additional amendments,
which were transmitted to Congress by the Chief Justice on the
same day (446 U.S. 995; Cong. Rec., vol. 126, pt. 8, p. 9535, Exec.
Comm. 4260; H. Doc. 96­306), and became effective August 1, 1980.
The amendments affected Rules 4, 5, 26, 28, 30, 32, 33, 34, 37, and 45.
Section 205(a) and (b) of Public Law 96­481 (approved October 21,
1980, 94 Stat. 2330) repealed Rule 37(f) and deleted the corresponding
item from the Table of Contents, to be effective October 1,
1981.
Amendments to Rule 4 were adopted by the Court by order dated
April 28, 1982, transmitted to Congress by the Chief Justice on the
same day (456 U.S. 1013; Cong. Rec., vol. 128, pt. 6, p. 8191, Exec.
Comm. 3822; H. Doc. 97­173), and became effective August 1, 1982.
However, Public Law 97­227 (approved August 2, 1982, 96 Stat. 246)
provided that the amendments to Rule 4 shall take effect on October
1, 1983, unless previously approved, disapproved, or modified by
Act of Congress, and further provided that this Act shall be effective
as of August 1, 1982, but shall not apply to the service of process
that takes place between August 1, 1982, and the date of enactment
of this Act [August 2, 1982]. Section 5 of Public Law 97­462
(approved January 12, 1983, 96 Stat. 2530) provided that the amendments
to Rule 4 the effective date of which was delayed by Public
Law 97­227 shall not take effect. Sections 2 to 4 of Public Law
97­462 amended Rule 4(a), (c) to (e), and (g), added Rule 4(j), and
added Form 18­A in the Appendix of Forms, effective 45 days after
enactment of Public Law 97­462 [February 26, 1983].
Additional amendments were adopted by the Court by order
dated April 28, 1983, transmitted to Congress by the Chief Justice
on the same day (461 U.S. 1095; Cong. Rec., vol. 129, pt. 8, p. 10479,
Exec. Comm. 1027; H. Doc. 98­54), and became effective August 1,
1983. The amendments included new Rules 26(g), 53(f), 72 through
X HISTORICAL NOTE
76 and new Official Forms 33 and 34, and amendments to Rules
6(b), 7(b), 11, 16, 26(a), (b), 52(a), 53(a), (b), (c), and 67.
Additional amendments were adopted by the Court by order
dated April 29, 1985, transmitted to Congress by the Chief Justice
on the same day (471 U.S. 1153; Cong. Rec., vol. 131, pt. 7, p. 9826,
Exec. Comm. 1156; H. Doc. 99­63), and became effective August 1,
1985. The amendments affected Rules 6(a), 45(d)(2), 52(a), 71A(h),
and 83, Official Form 18­A, and Rules B(1), C(3), and E(4)(f) of the
Supplemental Rules for Certain Admiralty and Maritime Claims.
Additional amendments were adopted by the Court by order
dated March 2, 1987, transmitted to Congress by the Chief Justice
on the same day (480 U.S. 953; Cong. Rec., vol. 133, pt. 4, p. 4484,
Exec. Comm. 714; H. Doc. 100­40), and became effective August 1,
1987. The amendments affected Rules 4(b), (d)(1), (e), (i)(1), 5(b), (e),
6(e), 8(a), (b), (e)(2), 9(a), 11, 12(a), (b), (e) to (g), 13(a), (e), (f), 14,
15, 16(f), 17, 18, 19(a), (b), 20(b), 22(1), 23(c)(2), 23.1, 24(a), 25(b), (d),
26(b)(3), (e)(1), (2), (f)(5), (g), 27(a)(1), (b), 28(b), 30(b)(1), (2), (4), (6),
(7), (c), (e), (f)(1), (g), 31(a), (b), 32(a)(4), 34(a), 35(a), (b)(1), (2), 36,
37(a)(2), (b)(2), (c), (d), (g), 38(c), (d), 41(a)(2), (b), 43(f), 44(a)(1), 44.1,
45(c), (f), 46, 49(a), 50(b), (d), 51, 53(a), (c) to (e)(1), (3), (5), 54(c),
55(a), (b), (e), 56(a), (b), (e) to (g), 60(b), 62(f), 63, 65(b), 65.1, 68, 69,
71, 71A(d)(2), (3)(ii), (e) to (g), (j), 73(b), 75(b)(2), (c)(1), (2), (4), 77(c),
78, and 81(c), and Rules B, C(3), (6), E(2)(b), (4)(b), (c), (5)(c), (9)(b),
(c), and F(1) to (6) of the Supplemental Rules for Certain Admiralty
and Maritime Claims.
Additional amendments were adopted by the Court by order
dated April 25, 1988, transmitted to Congress by the Chief Justice
on the same day (485 U.S. 1043; Cong. Rec., vol. 134, pt. 7, p. 9154,
Exec. Comm. 3515; H. Doc. 100­185), and became effective August 1,
1988. The amendments affected Rules 17(a) and 71A(e).
Section 7047(b) of Public Law 100­690 (approved November 18,
1988, 102 Stat. 4401) amended Rule 35. Section 7049 of Public Law
100­690, which directed amendment of Rule 17(a) by striking ``with
him'', and section 7050 of Public Law 100­690, which directed
amendment of Rule 71A(e) by striking ``taking of the defendants
property'' and inserting ``taking of the defendant's property'',
could not be executed because of the intervening amendments to
those Rules by the Court by order dated April 25, 1988, effective
August 1, 1988.
Additional amendments were adopted by the Court by order
dated April 30, 1991, transmitted to Congress by the Chief Justice
on the same day (500 U.S. 963; Cong. Rec., vol. 137, pt. 7, p. 9721,
Ex. Comm. 1190; H. Doc. 102­77), and became effective December 1,
1991. The amendments affected Rules 5, 15, 24, 34, 35, 41, 44, 45, 47,
48, 50, 52, 53, 63, 72, and 77, the headings for chapters VIII and IX,
and Rules C and E of the Supplemental Rules for Certain Admiralty
and Maritime Claims, added new Official Forms 1A and 1B,
and abrogated Form 18­A.
Section 11 of Pub. L. 102­198 (approved December 9, 1991, 105
Stat. 1626) amended Rule 15(c)(3) as transmitted to Congress by
the Supreme Court to become effective on December 1, 1991; provided
that Forms 1A and 1B included in the transmittal shall not
be effective; and provided that Form 18­A, abrogated by the
Supreme Court in the transmittal, effective December 1, 1991,
shall continue in effect on or after that date.
XIHISTORICAL NOTE
Additional amendments were adopted by the Court by order
dated April 22, 1993, transmitted to Congress by the Chief Justice
on the same day (507 U.S. 1089; Cong. Rec., vol. 139, pt. 6, p. 8127,
Exec. Comm. 1102; H. Doc. 103­74), and became effective December
1, 1993. The amendments affected Rules 1, 4, 5, 11, 12, 15, 16, 26, 28,
29, 30, 31, 32, 33, 34, 36, 37, 38, 50, 52, 53, 54, 58, 71A, 72, 73, 74, 75, and
76, added new Rule 4.1, affected Forms 2, 33, 34, and 34A, added new
Forms 1A, 1B, and 35, and abrogated Form 18­A.
Additional amendments were adopted by the Court by order
dated April 27, 1995, transmitted to Congress by the Chief Justice
on the same day (514 U.S. 1151; Cong. Rec., vol. 141, pt. 8, p. 11745,
Ex. Comm. 804; H. Doc. 104­64), and became effective December 1,
1995. The amendments affected Rules 50, 52, 59, and 83.
Additional amendments were adopted by the Court by order
dated April 23, 1996, transmitted to Congress by the Chief Justice
on the same day (517 U.S. 1279; Cong. Rec., vol. 142, pt. 6, p. 8831,
Ex. Comm. 2487; H. Doc. 104­201), and became effective December
1, 1996. The amendments affected Rules 5 and 43.
Additional amendments were adopted by the Court by order
dated April 11, 1997, transmitted to Congress by the Chief Justice
on the same day (520 U.S. 1305; Cong. Rec., vol. 143, pt. 4, p. 5550,
Ex. Comm. 2795; H. Doc. 105­67), and became effective December 1,
1997. The amendments affected Rules 9 and 73, abrogated Rules 74,
75, and 76, and affected Forms 33 and 34.
Additional amendments were adopted by the Court by order
dated April 24, 1998, transmitted to Congress by the Chief Justice
on the same day (523 U.S. 1221; H. Doc. 105­266), and became effective
December 1, 1998. The amendments affected Rule 23.
Additional amendments were adopted by the Court by order
dated April 26, 1999, transmitted to Congress by the Chief Justice
on the same day (526 U.S. 1183; Cong. Rec., vol. 145, pt. 6, p. 7907,
Ex. Comm. 1787; H. Doc. 106­54), and became effective December 1,
1999. The amendments affected Rule 6 and Form 2.
Additional amendments were adopted by the Court by order
dated April 17, 2000, transmitted to Congress by the Chief Justice
on the same day (529 U.S. 1155; Cong. Rec., vol. 146, pt. 5, p. 6328,
Ex. Comm. 7336; H. Doc. 106­228), and became effective December
1, 2000. The amendments affected Rules 4, 5, 12, 14, 26, 30, and 37
and Rules B, C, and E of the Supplemental Rules for Certain Admiralty
and Maritime Claims.
Additional amendments were adopted by the Court by order
dated April 23, 2001, transmitted to Congress by the Chief Justice
on the same day (532 U.S. 992; Cong. Rec., vol. 147, pt. 5, p. 6126,
Ex. Comm. 1575; H. Doc. 107­61), and became effective December 1,
2001. The amendments affected Rules 5, 6, 65, 77, 81, and 82.
Additional amendments were adopted by the Court by order
dated April 29, 2002, transmitted to Congress by the Chief Justice
on the same day (535 U.S. 1147; Cong. Rec., vol. 148, pt. 5, p. 6813,
Ex. Comm. 6623; H. Doc. 107­204), and became effective December
1, 2002. The amendments affected Rules 54, 58, and 81 and Rule C
of the Supplemental Rules for Certain Admiralty and Maritime
Claims and added new Rule 7.1.
Additional amendments were adopted by the Court by order
dated March 27, 2003, transmitted to Congress by the Chief Justice
on the same day (538 U.S. 1083; Cong. Rec., vol. 149, pt. 6, p. 7689,
XII HISTORICAL NOTE
Ex. Comm. 1493; H. Doc. 108­56), and became effective December 1,
2003. The amendments affected Rules 23, 51, 53, 54, and 71A and
Forms 19, 31, and 32.
Additional amendments were adopted by the Court by order
dated April 25, 2005, transmitted to Congress by the Chief Justice
on the same day (544 U.S. 1173; Cong. Rec., vol. 151, p. H3060, Daily
Issue, Ex. Comm. 1906; H. Doc. 109­23), and became effective December
1, 2005. The amendments affected Rules 6, 27, and 45, and
Rules B and C of the Supplemental Rules for Certain Admiralty
and Maritime Claims.
Additional amendments were adopted by the Court by order
dated April 12, 2006, transmitted to Congress by the Chief Justice
on the same day (547 U.S. 1233; Cong. Rec., vol. 152, p. H2179, Daily
Issue, Ex. Comm. 7317; H. Doc. 109­105), and became effective December
1, 2006. The amendments affected Rules 5, 9, 14, 16, 24, 26,
33, 34, 37, 45, 50, and 65.1, added new Rule 5.1, affected Form 35, affected
Rules A, C, and E of the Supplemental Rules for Admiralty
or Maritime Claims and Asset Forfeiture Actions, and added new
Rule G to such Supplemental Rules.
Additional amendments were adopted by the Court by order
dated April 30, 2007, transmitted to Congress by the Chief Justice
on the same day (550 U.S. 1003; Cong. Rec., vol. 153, p. H4208, Daily
Issue, Ex. Comm. 1377; H. Doc. 110­27), and became effective December
1, 2007. The amendments affected Rules 1 through 86 and
added new Rule 5.2; Forms 1 through 35 were amended to become
restyled Forms 1 through 82.
An additional amendment was adopted by the Court by order
dated April 23, 2008, transmitted to Congress by the Chief Justice
on the same day (553 U.S. ----; Cong. Rec., vol. 154, p. H4876, Daily
Issue, Ex. Comm. 6881; H. Doc. 110­117), and became effective December
1, 2008. The amendment affected Rule C of the Supplemental
Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions.
Committee Notes
Committee Notes prepared by the Committee on Rules of Practice
and Procedure and the Advisory Committee on the Federal
Rules of Civil Procedure, Judicial Conference of the United
States, explaining the purpose and intent of the amendments are
set out in the Appendix to Title 28, United States Code, following
the particular rule to which they relate. In addition, the rules and
amendments, together with Committee Notes, are set out in the
House documents listed above.
(XIII)
TABLE OF CONTENTS
Page
Foreword .............................................................................................................. III
Authority for promulgation of rules .................................................................... V
Historical note ..................................................................................................... VII
RULES
TITLE I. SCOPE OF RULES; FORM OF ACTION
Rule 1. Scope and Purpose ............................................................................. 1
Rule 2. One Form of Action ........................................................................... 1
TITLE II. COMMENCING AN ACTION; SERVICE OF PROCESS, PLEADINGS,
MOTIONS, AND ORDERS
Rule 3. Commencing an Action ...................................................................... 1
Rule 4. Summons ........................................................................................... 1
Rule 4.1. Serving Other Process ..................................................................... 6
Rule 5. Serving and Filing Pleadings and Other Papers ................................ 6
Rule 5.1. Constitutional Challenge to a Statute -- Notice, Certification,
and Intervention ............................................................................... 8
Rule 5.2. Privacy Protection For Filings Made with the Court ..................... 9
Rule 6. Computing and Extending Time; Time for Motion Papers ................ 10
TITLE III. PLEADINGS AND MOTIONS
Rule 7. Pleadings Allowed; Form of Motions and Other Papers .................... 11
Rule 7.1. Disclosure Statement ...................................................................... 11
Rule 8. General Rules of Pleading ................................................................. 12
Rule 9. Pleading Special Matters ................................................................... 13
Rule 10. Form of Pleadings ............................................................................ 14
Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to
the Court; Sanctions ......................................................................... 14
Rule 12. Defenses and Objections: When and How Presented; Motion for
Judgment on the Pleadings; Consolidating Motions; Waiving
Defenses; Pretrial Hearing ................................................................ 16
Rule 13. Counterclaim and Crossclaim .......................................................... 18
Rule 14. Third-Party Practice ........................................................................ 19
Rule 15. Amended and Supplemental Pleadings ............................................ 20
Rule 16. Pretrial Conferences; Scheduling; Management .............................. 22
TITLE IV. PARTIES
Rule 17. Plaintiff and Defendant; Capacity; Public Officers .......................... 24
Rule 18. Joinder of Claims ............................................................................. 25
Rule 19. Required Joinder of Parties ............................................................. 25
Rule 20. Permissive Joinder of Parties .......................................................... 26
Rule 21. Misjoinder and Nonjoinder of Parties .............................................. 27
Rule 22. Interpleader ...................................................................................... 27
Rule 23. Class Actions .................................................................................... 27
Rule 23.1. Derivative Actions ......................................................................... 31
Rule 23.2. Actions Relating to Unincorporated Associations ......................... 31
Rule 24. Intervention ..................................................................................... 32
Rule 25. Substitution of Parties .................................................................... 32
TITLE V. DISCLOSURES AND DISCOVERY
Rule 26. Duty to Disclose; General Provisions Governing Discovery ............ 33
Rule 27. Depositions to Perpetuate Testimony .............................................. 41
Rule 28. Persons Before Whom Depositions May Be Taken ........................... 42
Rule 29. Stipulations About Discovery Procedure ......................................... 43
Rule 30. Depositions by Oral Examination .................................................... 44
Rule 31. Depositions by Written Questions .................................................... 47
Rule 32. Using Depositions in Court Proceedings .......................................... 48
Rule 33. Interrogatories to Parties ................................................................ 51
Rule 34. Producing Documents, Electronically Stored Information, and
Tangible Things, or Entering onto Land, for Inspection and Other
Purposes ............................................................................................ 52
XIV CONTENTS
TITLE V. DISCLOSURES AND DISCOVERY--Continued Page
Rule 35. Physical and Mental Examinations ................................................. 53
Rule 36. Requests for Admission .................................................................... 54
Rule 37. Failure to Make Disclosures or to Cooperate in Discovery;
Sanctions .......................................................................................... 55
TITLE VI. TRIALS
Rule 38. Right to a Jury Trial; Demand ......................................................... 58
Rule 39. Trial by Jury or by the Court .......................................................... 59
Rule 40. Scheduling Cases for Trial ............................................................... 59
Rule 41. Dismissal of Actions ......................................................................... 59
Rule 42. Consolidation; Separate Trials ......................................................... 60
Rule 43. Taking Testimony ............................................................................ 61
Rule 44. Proving an Official Record ............................................................... 61
Rule 44.1. Determining Foreign Law .............................................................. 62
Rule 45. Subpoena .......................................................................................... 62
Rule 46. Objecting to a Ruling or Order ......................................................... 66
Rule 47. Selecting Jurors ............................................................................... 66
Rule 48. Number of Jurors; Verdict ............................................................... 67
Rule 49. Special Verdict; General Verdict and Questions .............................. 67
Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for
a New Trial; Conditional Ruling ....................................................... 68
Rule 51. Instructions to the Jury; Objections; Preserving a Claim of Error .. 69
Rule 52. Findings and Conclusions by the Court; Judgment on Partial
Findings ............................................................................................ 70
Rule 53. Masters ............................................................................................. 71
TITLE VII. JUDGMENT
Rule 54. Judgment; Costs ............................................................................... 73
Rule 55. Default; Default Judgment .............................................................. 74
Rule 56. Summary Judgment ......................................................................... 75
Rule 57. Declaratory Judgment ..................................................................... 76
Rule 58. Entering Judgment .......................................................................... 76
Rule 59. New Trial; Altering or Amending a Judgment ................................. 77
Rule 60. Relief from a Judgment or Order ..................................................... 78
Rule 61. Harmless Error ................................................................................. 79
Rule 62. Stay of Proceedings to Enforce a Judgment .................................... 79
Rule 63. Judge's Inability to Proceed ............................................................ 80
TITLE VIII. PROVISIONAL AND FINAL REMEDIES
Rule 64. Seizing a Person or Property ........................................................... 80
Rule 65. Injunctions and Restraining Orders ................................................. 80
Rule 65.1. Proceedings Against a Surety ........................................................ 82
Rule 66. Receivers .......................................................................................... 82
Rule 67. Deposit into Court ............................................................................ 82
Rule 68. Offer of Judgment ............................................................................ 83
Rule 69. Execution ......................................................................................... 83
Rule 70. Enforcing a Judgment for a Specific Act ......................................... 84
Rule 71. Enforcing Relief For or Against a Nonparty .................................... 84
TITLE IX. SPECIAL PROCEEDINGS
Rule 71.1. Condemning Real or Personal Property ........................................ 84
Rule 72. Magistrate Judges: Pretrial Order ................................................... 89
Rule 73. Magistrate Judges: Trial by Consent; Appeal .................................. 89
Rule 74. [Abrogated.]
Rule 75. [Abrogated.]
Rule 76. [Abrogated.]
TITLE X. DISTRICT COURTS AND CLERKS: CONDUCTING BUSINESS;
ISSUING ORDERS
Rule 77. Conducting Business; Clerk's Authority; Notice of an Order or
Judgment .......................................................................................... 90
Rule 78. Hearing Motions; Submission on Briefs ........................................... 91
Rule 79. Records Kept by the Clerk ............................................................... 91
Rule 80. Stenographic Transcript as Evidence ............................................... 92
TITLE XI. GENERAL PROVISIONS
Rule 81. Applicability of the Rules in General; Removed Actions ................. 92
Rule 82. Jurisdiction and Venue Unaffected .................................................. 94
Rule 83. Rules by District Courts; Judge's Directives ................................... 94
Rule 84. Forms ............................................................................................... 94
Rule 85. Title ................................................................................................. 95
Rule 86. Effective Dates ................................................................................. 95
XVCONTENTS
APPENDIX OF FORMS
Page
Form 1. Caption ................................................................................................... 98
Form 2. Date, Signature, Address, E-mail Address, and Telephone Number ....... 99
Form 3. Summons ................................................................................................ 100
Form 4. Summons on a Third-Party Complaint .................................................. 101
Form 5. Notice of a Lawsuit and Request to Waive Service of a Summons ......... 102
Form 6. Waiver of the Service of Summons ......................................................... 103
Form 7. Statement of Jurisdiction ...................................................................... 104
Form 8. Statement of Reasons for Omitting a Party .......................................... 105
Form 9. Statement Noting a Party's Death ......................................................... 106
Form 10. Complaint to Recover a Sum Certain ................................................... 107
Form 11. Complaint for Negligence ..................................................................... 108
Form 12. Complaint for Negligence When the Plaintiff Does Not Know Who Is
Responsible ........................................................................................ 109
Form 13. Complaint for Negligence Under the Federal Employers' Liability Act 110
Form 14. Complaint for Damages Under the Merchant Marine Act ..................... 111
Form 15. Complaint for the Conversion of Property ............................................ 112
Form 16. Third-Party Complaint ......................................................................... 113
Form 17. Complaint for Specific Performance of a Contract to Convey Land ..... 114
Form 18. Complaint for Patent Infringement ...................................................... 115
Form 19. Complaint for Copyright Infringement and Unfair Competition .......... 116
Form 20. Complaint for Interpleader and Declaratory Relief .............................. 117
Form 21. Complaint on a Claim for a Debt and to Set Aside a Fraudulent
Conveyance Under Rule 18(b) ............................................................. 118
Form 30. Answer Presenting Defenses Under Rule 12(b) ...................................... 119
Form 31. Answer to a Complaint for Money Had and Received with a
Counterclaim for Interpleader ........................................................... 120
Form 40. Motion to Dismiss Under Rule 12(b) for Lack of Jurisdiction,
Improper Venue, Insufficient Service of Process, or Failure to State
a Claim .............................................................................................. 121
Form 41. Motion to Bring in a Third-Party Defendant ........................................ 122
Form 42. Motion to Intervene as a Defendant Under Rule 24 ............................... 123
Form 50. Request to Produce Documents and Tangible Things, or to Enter onto
Land Under Rule 34 ............................................................................ 124
Form 51. Request for Admissions Under Rule 36 .................................................. 125
Form 52. Report of the Parties' Planning Meeting .............................................. 126
Form 60. Notice of Condemnation ....................................................................... 127
Form 61. Complaint for Condemnation ................................................................ 128
Form 70. Judgment on a Jury Verdict ................................................................. 129
Form 71. Judgment by the Court without a Jury ................................................ 130
Form 80. Notice of a Magistrate Judge's Availability ......................................... 131
Form 81. Consent to an Assignment to a Magistrate Judge ................................ 132
Form 82. Order of Assignment to a Magistrate Judge ......................................... 133
SUPPLEMENTAL RULES FOR ADMIRALTY OR MARITIME CLAIMS
AND ASSET FORFEITURE ACTIONS
Rule A. Scope of Rules ......................................................................................... 134
Rule B. In Personam Actions: Attachment and Garnishment ............................. 134
Rule C. In Rem Actions: Special Provisions ........................................................ 135
Rule D. Possessory, Petitory, and Partition Actions .......................................... 137
Rule E. Actions in Rem and Quasi in Rem: General Provisions .......................... 138
Rule F. Limitation of Liability ........................................................................... 141
Rule G. Forfeiture Actions In Rem ...................................................................... 144
(1)
1 Title amended December 29, 1948, effective October 20, 1949.
RULES OF CIVIL PROCEDURE
FOR THE
UNITED STATES DISTRICT COURTS 1
Effective September 16, 1938, as amended to December 1, 2008
TITLE I. SCOPE OF RULES; FORM OF ACTION
Rule 1. Scope and Purpose
These rules govern the procedure in all civil actions and proceedings
in the United States district courts, except as stated in
Rule 81. They should be construed and administered to secure the
just, speedy, and inexpensive determination of every action and
proceeding.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July
1, 1966; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 2. One Form of Action
There is one form of action -- the civil action.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
TITLE II. COMMENCING AN ACTION; SERVICE OF PROCESS,
PLEADINGS, MOTIONS, AND ORDERS
Rule 3. Commencing an Action
A civil action is commenced by filing a complaint with the
court.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 4. Summons
(a) CONTENTS; AMENDMENTS.
(1) Contents. A summons must:
(A) name the court and the parties;
(B) be directed to the defendant;
(C) state the name and address of the plaintiff's attorney
or -- if unrepresented -- of the plaintiff;
(D) state the time within which the defendant must appear
and defend;
(E) notify the defendant that a failure to appear and defend
will result in a default judgment against the defendant
for the relief demanded in the complaint;
(F) be signed by the clerk; and
(G) bear the court's seal.
(2) Amendments. The court may permit a summons to be
amended.
2Rule 4 FEDERAL RULES OF CIVIL PROCEDURE
(b) ISSUANCE. On or after filing the complaint, the plaintiff may
present a summons to the clerk for signature and seal. If the summons
is properly completed, the clerk must sign, seal, and issue
it to the plaintiff for service on the defendant. A summons -- or
a copy of a summons that is addressed to multiple defendants --
must be issued for each defendant to be served.
(c) SERVICE.
(1) In General. A summons must be served with a copy of the
complaint. The plaintiff is responsible for having the summons
and complaint served within the time allowed by Rule 4(m)
and must furnish the necessary copies to the person who
makes service.
(2) By Whom. Any person who is at least 18 years old and not
a party may serve a summons and complaint.
(3) By a Marshal or Someone Specially Appointed. At the plaintiff's
request, the court may order that service be made by a
United States marshal or deputy marshal or by a person specially
appointed by the court. The court must so order if the
plaintiff is authorized to proceed in forma pauperis under 28
U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
(d) WAIVING SERVICE.
(1) Requesting a Waiver. An individual, corporation, or association
that is subject to service under Rule 4(e), (f), or (h) has
a duty to avoid unnecessary expenses of serving the summons.
The plaintiff may notify such a defendant that an action has
been commenced and request that the defendant waive service
of a summons. The notice and request must:
(A) be in writing and be addressed:
(i) to the individual defendant; or
(ii) for a defendant subject to service under Rule 4(h),
to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive
service of process;
(B) name the court where the complaint was filed;
(C) be accompanied by a copy of the complaint, 2 copies
of a waiver form, and a prepaid means for returning the
form;
(D) inform the defendant, using text prescribed in Form
5, of the consequences of waiving and not waiving service;
(E) state the date when the request is sent;
(F) give the defendant a reasonable time of at least 30
days after the request was sent -- or at least 60 days if sent
to the defendant outside any judicial district of the United
States -- to return the waiver; and
(G) be sent by first-class mail or other reliable means.
(2) Failure to Waive. If a defendant located within the United
States fails, without good cause, to sign and return a waiver
requested by a plaintiff located within the United States, the
court must impose on the defendant:
(A) the expenses later incurred in making service; and
(B) the reasonable expenses, including attorney's fees, of
any motion required to collect those service expenses.
(3) Time to Answer After a Waiver. A defendant who, before
being served with process, timely returns a waiver need not
3 Rule 4FEDERAL RULES OF CIVIL PROCEDURE
serve an answer to the complaint until 60 days after the request
was sent -- or until 90 days after it was sent to the defendant
outside any judicial district of the United States.
(4) Results of Filing a Waiver. When the plaintiff files a waiver,
proof of service is not required and these rules apply as if
a summons and complaint had been served at the time of filing
the waiver.
(5) Jurisdiction and Venue Not Waived. Waiving service of a
summons does not waive any objection to personal jurisdiction
or to venue.
(e) SERVING AN INDIVIDUAL WITHIN A JUDICIAL DISTRICT OF THE
UNITED STATES. Unless federal law provides otherwise, an individual
-- other than a minor, an incompetent person, or a person
whose waiver has been filed -- may be served in a judicial district
of the United States by:
(1) following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where the
district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint
to the individual personally;
(B) leaving a copy of each at the individual's dwelling or
usual place of abode with someone of suitable age and discretion
who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
(f) SERVING AN INDIVIDUAL IN A FOREIGN COUNTRY. Unless federal
law provides otherwise, an individual -- other than a minor, an incompetent
person, or a person whose waiver has been filed -- may
be served at a place not within any judicial district of the United
States:
(1) by any internationally agreed means of service that is
reasonably calculated to give notice, such as those authorized
by the Hague Convention on the Service Abroad of Judicial
and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international
agreement allows but does not specify other means,
by a method that is reasonably calculated to give notice:
(A) as prescribed by the foreign country's law for service
in that country in an action in its courts of general juris-
diction;
(B) as the foreign authority directs in response to a letter
rogatory or letter of request; or
(C) unless prohibited by the foreign country's law, by:
(i) delivering a copy of the summons and of the complaint
to the individual personally; or
(ii) using any form of mail that the clerk addresses
and sends to the individual and that requires a signed
receipt; or
(3) by other means not prohibited by international agreement,
as the court orders.
(g) SERVING A MINOR OR AN INCOMPETENT PERSON. A minor or an
incompetent person in a judicial district of the United States
must be served by following state law for serving a summons or
like process on such a defendant in an action brought in the
4Rule 4 FEDERAL RULES OF CIVIL PROCEDURE
courts of general jurisdiction of the state where service is made.
A minor or an incompetent person who is not within any judicial
district of the United States must be served in the manner prescribed
by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3).
(h) SERVING A CORPORATION, PARTNERSHIP, OR ASSOCIATION. Unless
federal law provides otherwise or the defendant's waiver has
been filed, a domestic or foreign corporation, or a partnership or
other unincorporated association that is subject to suit under a
common name, must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving
an individual; or
(B) by delivering a copy of the summons and of the complaint
to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive
service of process and -- if the agent is one authorized
by statute and the statute so requires -- by also mailing
a copy of each to the defendant; or
(2) at a place not within any judicial district of the United
States, in any manner prescribed by Rule 4(f) for serving an
individual, except personal delivery under (f)(2)(C)(i).
(i) SERVING THE UNITED STATES AND ITS AGENCIES, CORPORATIONS,
OFFICERS, OR EMPLOYEES.
(1) United States. To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the complaint
to the United States attorney for the district where
the action is brought -- or to an assistant United States
attorney or clerical employee whom the United States attorney
designates in a writing filed with the court clerk --
or
(ii) send a copy of each by registered or certified mail to
the civil-process clerk at the United States attorney's of-
fice;
(B) send a copy of each by registered or certified mail to
the Attorney General of the United States at Washington,
D.C.; and
(C) if the action challenges an order of a nonparty agency
or officer of the United States, send a copy of each by
registered or certified mail to the agency or officer.
(2) Agency; Corporation; Officer or Employee Sued in an Official
Capacity. To serve a United States agency or corporation, or
a United States officer or employee sued only in an official capacity,
a party must serve the United States and also send a
copy of the summons and of the complaint by registered or
certified mail to the agency, corporation, officer, or employee.
(3) Officer or Employee Sued Individually. To serve a United
States officer or employee sued in an individual capacity for
an act or omission occurring in connection with duties performed
on the United States' behalf (whether or not the officer
or employee is also sued in an official capacity), a party must
serve the United States and also serve the officer or employee
under Rule 4(e), (f), or (g).
(4) Extending Time. The court must allow a party a reasonable
time to cure its failure to:
5 Rule 4FEDERAL RULES OF CIVIL PROCEDURE
(A) serve a person required to be served under Rule
4(i)(2), if the party has served either the United States attorney
or the Attorney General of the United States; or
(B) serve the United States under Rule 4(i)(3), if the
party has served the United States officer or employee.
(j) SERVING A FOREIGN, STATE, OR LOCAL GOVERNMENT.
(1) Foreign State. A foreign state or its political subdivision,
agency, or instrumentality must be served in accordance with
28 U.S.C. § 1608.
(2) State or Local Government. A state, a municipal corporation,
or any other state-created governmental organization
that is subject to suit must be served by:
(A) delivering a copy of the summons and of the complaint
to its chief executive officer; or
(B) serving a copy of each in the manner prescribed by
that state's law for serving a summons or like process on
such a defendant.
(k) TERRITORIAL LIMITS OF EFFECTIVE SERVICE.
(1) In General. Serving a summons or filing a waiver of service
establishes personal jurisdiction over a defendant:
(A) who is subject to the jurisdiction of a court of general
jurisdiction in the state where the district court is lo-
cated;
(B) who is a party joined under Rule 14 or 19 and is
served within a judicial district of the United States and
not more than 100 miles from where the summons was issued;
or
(C) when authorized by a federal statute.
(2) Federal Claim Outside State-Court Jurisdiction. For a claim
that arises under federal law, serving a summons or filing a
waiver of service establishes personal jurisdiction over a defendant
if:
(A) the defendant is not subject to jurisdiction in any
state's courts of general jurisdiction; and
(B) exercising jurisdiction is consistent with the United
States Constitution and laws.
(l) PROVING SERVICE.
(1) Affidavit Required. Unless service is waived, proof of service
must be made to the court. Except for service by a United
States marshal or deputy marshal, proof must be by the server's
affidavit.
(2) Service Outside the United States. Service not within any
judicial district of the United States must be proved as fol-
lows:
(A) if made under Rule 4(f)(1), as provided in the applicable
treaty or convention; or
(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed
by the addressee, or by other evidence satisfying the court
that the summons and complaint were delivered to the ad-
dressee.
(3) Validity of Service; Amending Proof. Failure to prove service
does not affect the validity of service. The court may permit
proof of service to be amended.
(m) TIME LIMIT FOR SERVICE. If a defendant is not served within
120 days after the complaint is filed, the court -- on motion or on
6Rule 4.1 FEDERAL RULES OF CIVIL PROCEDURE
its own after notice to the plaintiff -- must dismiss the action
without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause
for the failure, the court must extend the time for service for an
appropriate period. This subdivision (m) does not apply to service
in a foreign country under Rule 4(f) or 4(j)(1).
(n) ASSERTING JURISDICTION OVER PROPERTY OR ASSETS.
(1) Federal Law. The court may assert jurisdiction over property
if authorized by a federal statute. Notice to claimants of
the property must be given as provided in the statute or by
serving a summons under this rule.
(2) State Law. On a showing that personal jurisdiction over
a defendant cannot be obtained in the district where the action
is brought by reasonable efforts to serve a summons
under this rule, the court may assert jurisdiction over the defendant's
assets found in the district. Jurisdiction is acquired
by seizing the assets under the circumstances and in the manner
provided by state law in that district.
(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July
1, 1966; Apr. 29, 1980, eff. Aug. 1, 1980; Jan. 12, 1983, eff. Feb. 26, 1983;
Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17,
2000, eff. Dec. 1, 2000; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 4.1. Serving Other Process
(a) IN GENERAL. Process -- other than a summons under Rule 4
or a subpoena under Rule 45 -- must be served by a United States
marshal or deputy marshal or by a person specially appointed for
that purpose. It may be served anywhere within the territorial
limits of the state where the district court is located and, if authorized
by a federal statute, beyond those limits. Proof of service
must be made under Rule 4(l).
(b) ENFORCING ORDERS: COMMITTING FOR CIVIL CONTEMPT. An
order committing a person for civil contempt of a decree or injunction
issued to enforce federal law may be served and enforced
in any district. Any other order in a civil-contempt proceeding
may be served only in the state where the issuing court is located
or elsewhere in the United States within 100 miles from where the
order was issued.
(As added Apr. 22, 1993, eff. Dec. 1, 1993; amended Apr. 30, 2007, eff.
Dec. 1, 2007.)
Rule 5. Serving and Filing Pleadings and Other Papers
(a) SERVICE: WHEN REQUIRED.
(1) In General. Unless these rules provide otherwise, each of
the following papers must be served on every party:
(A) an order stating that service is required;
(B) a pleading filed after the original complaint, unless
the court orders otherwise under Rule 5(c) because there
are numerous defendants;
(C) a discovery paper required to be served on a party,
unless the court orders otherwise;
(D) a written motion, except one that may be heard ex
parte; and
(E) a written notice, appearance, demand, or offer of
judgment, or any similar paper.
7 Rule 5FEDERAL RULES OF CIVIL PROCEDURE
(2) If a Party Fails to Appear. No service is required on a
party who is in default for failing to appear. But a pleading
that asserts a new claim for relief against such a party must
be served on that party under Rule 4.
(3) Seizing Property. If an action is begun by seizing property
and no person is or need be named as a defendant, any service
required before the filing of an appearance, answer, or claim
must be made on the person who had custody or possession of
the property when it was seized.
(b) SERVICE: HOW MADE.
(1) Serving an Attorney. If a party is represented by an attorney,
service under this rule must be made on the attorney unless
the court orders service on the party.
(2) Service in General. A paper is served under this rule by:
(A) handing it to the person;
(B) leaving it:
(i) at the person's office with a clerk or other person
in charge or, if no one is in charge, in a conspicuous
place in the office; or
(ii) if the person has no office or the office is closed,
at the person's dwelling or usual place of abode with
someone of suitable age and discretion who resides
there;
(C) mailing it to the person's last known address -- in
which event service is complete upon mailing;
(D) leaving it with the court clerk if the person has no
known address;
(E) sending it by electronic means if the person consented
in writing -- in which event service is complete
upon transmission, but is not effective if the serving party
learns that it did not reach the person to be served; or
(F) delivering it by any other means that the person consented
to in writing -- in which event service is complete
when the person making service delivers it to the agency
designated to make delivery.
(3) Using Court Facilities. If a local rule so authorizes, a party
may use the court's transmission facilities to make service
under Rule 5(b)(2)(E).
(c) SERVING NUMEROUS DEFENDANTS.
(1) In General. If an action involves an unusually large number
of defendants, the court may, on motion or on its own,
order that:
(A) defendants' pleadings and replies to them need not be
served on other defendants;
(B) any crossclaim, counterclaim, avoidance, or affirmative
defense in those pleadings and replies to them will be
treated as denied or avoided by all other parties; and
(C) filing any such pleading and serving it on the plaintiff
constitutes notice of the pleading to all parties.
(2) Notifying Parties. A copy of every such order must be
served on the parties as the court directs.
(d) FILING.
(1) Required Filings; Certificate of Service. Any paper after the
complaint that is required to be served -- together with a certificate
of service -- must be filed within a reasonable time
8Rule 5.1 FEDERAL RULES OF CIVIL PROCEDURE
after service. But disclosures under Rule 26(a)(1) or (2) and the
following discovery requests and responses must not be filed
until they are used in the proceeding or the court orders filing:
depositions, interrogatories, requests for documents or
tangible things or to permit entry onto land, and requests for
admission.
(2) How Filing Is Made -- In General. A paper is filed by delivering
it:
(A) to the clerk; or
(B) to a judge who agrees to accept it for filing, and who
must then note the filing date on the paper and promptly
send it to the clerk.
(3) Electronic Filing, Signing, or Verification. A court may, by
local rule, allow papers to be filed, signed, or verified by electronic
means that are consistent with any technical standards
established by the Judicial Conference of the United States. A
local rule may require electronic filing only if reasonable exceptions
are allowed. A paper filed electronically in compliance
with a local rule is a written paper for purposes of these
rules.
(4) Acceptance by the Clerk. The clerk must not refuse to file
a paper solely because it is not in the form prescribed by these
rules or by a local rule or practice.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff. July
1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr.
23, 1996, eff. Dec. 1, 1996; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 23, 2001,
eff. Dec. 1, 2001; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 5.1. Constitutional Challenge to a Statute -- Notice, Certification,
and Intervention
(a) NOTICE BY A PARTY. A party that files a pleading, written
motion, or other paper drawing into question the constitutionality
of a federal or state statute must promptly:
(1) file a notice of constitutional question stating the question
and identifying the paper that raises it, if:
(A) a federal statute is questioned and the parties do not
include the United States, one of its agencies, or one of its
officers or employees in an official capacity; or
(B) a state statute is questioned and the parties do not
include the state, one of its agencies, or one of its officers
or employees in an official capacity; and
(2) serve the notice and paper on the Attorney General of the
United States if a federal statute is questioned -- or on the
state attorney general if a state statute is questioned -- either
by certified or registered mail or by sending it to an electronic
address designated by the attorney general for this purpose.
(b) CERTIFICATION BY THE COURT. The court must, under 28 U.S.C.
§ 2403, certify to the appropriate attorney general that a statute
has been questioned.
(c) INTERVENTION; FINAL DECISION ON THE MERITS. Unless the
court sets a later time, the attorney general may intervene within
60 days after the notice is filed or after the court certifies the
9 Rule 5.2FEDERAL RULES OF CIVIL PROCEDURE
challenge, whichever is earlier. Before the time to intervene expires,
the court may reject the constitutional challenge, but may
not enter a final judgment holding the statute unconstitutional.
(d) NO FORFEITURE. A party's failure to file and serve the notice,
or the court's failure to certify, does not forfeit a constitutional
claim or defense that is otherwise timely asserted.
(As added Apr. 12, 2006, eff. Dec. 1, 2006; amended Apr. 30, 2007, eff.
Dec. 1, 2007.)
Rule 5.2. Privacy Protection For Filings Made with the Court
(a) REDACTED FILINGS. Unless the court orders otherwise, in an
electronic or paper filing with the court that contains an individual's
social-security number, taxpayer-identification number, or
birth date, the name of an individual known to be a minor, or a
financial-account number, a party or nonparty making the filing
may include only:
(1) the last four digits of the social-security number and taxpayer-identification
number;
(2) the year of the individual's birth;
(3) the minor's initials; and
(4) the last four digits of the financial-account number.
(b) EXEMPTIONS FROM THE REDACTION REQUIREMENT. The redaction
requirement does not apply to the following:
(1) a financial-account number that identifies the property
allegedly subject to forfeiture in a forfeiture proceeding;
(2) the record of an administrative or agency proceeding;
(3) the official record of a state-court proceeding;
(4) the record of a court or tribunal, if that record was not
subject to the redaction requirement when originally filed;
(5) a filing covered by Rule 5.2(c) or (d); and
(6) a pro se filing in an action brought under 28 U.S.C. §§ 2241,
2254, or 2255.
(c) LIMITATIONS ON REMOTE ACCESS TO ELECTRONIC FILES; SOCIALSECURITY
APPEALS AND IMMIGRATION CASES. Unless the court orders
otherwise, in an action for benefits under the Social Security
Act, and in an action or proceeding relating to an order of removal,
to relief from removal, or to immigration benefits or detention,
access to an electronic file is authorized as follows:
(1) the parties and their attorneys may have remote electronic
access to any part of the case file, including the administrative
record;
(2) any other person may have electronic access to the full
record at the courthouse, but may have remote electronic access
only to:
(A) the docket maintained by the court; and
(B) an opinion, order, judgment, or other disposition of
the court, but not any other part of the case file or the administrative
record.
(d) FILINGS MADE UNDER SEAL. The court may order that a filing
be made under seal without redaction. The court may later unseal
the filing or order the person who made the filing to file a redacted
version for the public record.
(e) PROTECTIVE ORDERS. For good cause, the court may by order
in a case:
10Rule 6 FEDERAL RULES OF CIVIL PROCEDURE
(1) require redaction of additional information; or
(2) limit or prohibit a nonparty's remote electronic access to
a document filed with the court.
(f) OPTION FOR ADDITIONAL UNREDACTED FILING UNDER SEAL. A
person making a redacted filing may also file an unredacted copy
under seal. The court must retain the unredacted copy as part of
the record.
(g) OPTION FOR FILING A REFERENCE LIST. A filing that contains
redacted information may be filed together with a reference list
that identifies each item of redacted information and specifies an
appropriate identifier that uniquely corresponds to each item listed.
The list must be filed under seal and may be amended as of
right. Any reference in the case to a listed identifier will be construed
to refer to the corresponding item of information.
(h) WAIVER OF PROTECTION OF IDENTIFIERS. A person waives the
protection of Rule 5.2(a) as to the person's own information by filing
it without redaction and not under seal.
(As added Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 6. Computing and Extending Time; Time for Motion Papers
(a) COMPUTING TIME. The following rules apply in computing any
time period specified in these rules or in any local rule, court
order, or statute:
(1) Day of the Event Excluded. Exclude the day of the act,
event, or default that begins the period.
(2) Exclusions from Brief Periods. Exclude intermediate Saturdays,
Sundays, and legal holidays when the period is less than
11 days.
(3) Last Day. Include the last day of the period unless it is
a Saturday, Sunday, legal holiday, or -- if the act to be done
is filing a paper in court -- a day on which weather or other
conditions make the clerk's office inaccessible. When the last
day is excluded, the period runs until the end of the next day
that is not a Saturday, Sunday, legal holiday, or day when the
clerk's office is inaccessible.
(4) ``Legal Holiday'' Defined. As used in these rules, ``legal
holiday'' means:
(A) the day set aside by statute for observing New Year's
Day, Martin Luther King Jr.'s Birthday, Washington's
Birthday, Memorial Day, Independence Day, Labor Day,
Columbus Day, Veterans' Day, Thanksgiving Day, or
Christmas Day; and
(B) any other day declared a holiday by the President,
Congress, or the state where the district court is located.
(b) EXTENDING TIME.
(1) In General. When an act may or must be done within a
specified time, the court may, for good cause, extend the time:
(A) with or without motion or notice if the court acts,
or if a request is made, before the original time or its extension
expires; or
(B) on motion made after the time has expired if the
party failed to act because of excusable neglect.
(2) Exceptions. A court must not extend the time to act under
Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b), except as
those rules allow.
11 Rule 7.1FEDERAL RULES OF CIVIL PROCEDURE
(c) MOTIONS, NOTICES OF HEARING, AND AFFIDAVITS.
(1) In General. A written motion and notice of the hearing
must be served at least 5 days before the time specified for the
hearing, with the following exceptions:
(A) when the motion may be heard ex parte;
(B) when these rules set a different time; or
(C) when a court order -- which a party may, for good
cause, apply for ex parte -- sets a different time.
(2) Supporting Affidavit. Any affidavit supporting a motion
must be served with the motion. Except as Rule 59(c) provides
otherwise, any opposing affidavit must be served at least 1 day
before the hearing, unless the court permits service at another
time.
(d) ADDITIONAL TIME AFTER CERTAIN KINDS OF SERVICE. When a
party may or must act within a specified time after service and
service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are
added after the period would otherwise expire under Rule 6(a).
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968;
Mar. 1, 1971, eff. July 1, 1971; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29,
1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 26, 1999,
eff. Dec. 1, 1999; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 25, 2005, eff. Dec.
1, 2005; Apr. 30, 2007, eff. Dec. 1, 2007.)
TITLE III. PLEADINGS AND MOTIONS
Rule 7. Pleadings Allowed; Form of Motions and Other Papers
(a) PLEADINGS. Only these pleadings are allowed:
(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a counter-
claim;
(4) an answer to a crossclaim;
(5) a third-party complaint;
(6) an answer to a third-party complaint; and
(7) if the court orders one, a reply to an answer.
(b) MOTIONS AND OTHER PAPERS.
(1) In General. A request for a court order must be made by
motion. The motion must:
(A) be in writing unless made during a hearing or trial;
(B) state with particularity the grounds for seeking the
order; and
(C) state the relief sought.
(2) Form. The rules governing captions and other matters of
form in pleadings apply to motions and other papers.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 7.1. Disclosure Statement
(a) WHO MUST FILE; CONTENTS. A nongovernmental corporate
party must file 2 copies of a disclosure statement that:
(1) identifies any parent corporation and any publicly held
corporation owning 10% or more of its stock; or
(2) states that there is no such corporation.
12Rule 8 FEDERAL RULES OF CIVIL PROCEDURE
(b) TIME TO FILE; SUPPLEMENTAL FILING. A party must:
(1) file the disclosure statement with its first appearance,
pleading, petition, motion, response, or other request addressed
to the court; and
(2) promptly file a supplemental statement if any required
information changes.
(As added Apr. 29, 2002, eff. Dec. 1, 2002; amended Apr. 30, 2007, eff.
Dec. 1, 2007.)
Rule 8. General Rules of Pleading
(a) CLAIM FOR RELIEF. A pleading that states a claim for relief
must contain:
(1) a short and plain statement of the grounds for the court's
jurisdiction, unless the court already has jurisdiction and the
claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief
in the alternative or different types of relief.
(b) DEFENSES; ADMISSIONS AND DENIALS.
(1) In General. In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each
claim asserted against it; and
(B) admit or deny the allegations asserted against it by
an opposing party.
(2) Denials -- Responding to the Substance. A denial must fairly
respond to the substance of the allegation.
(3) General and Specific Denials. A party that intends in good
faith to deny all the allegations of a pleading -- including the
jurisdictional grounds -- may do so by a general denial. A
party that does not intend to deny all the allegations must either
specifically deny designated allegations or generally deny
all except those specifically admitted.
(4) Denying Part of an Allegation. A party that intends in
good faith to deny only part of an allegation must admit the
part that is true and deny the rest.
(5) Lacking Knowledge or Information. A party that lacks
knowledge or information sufficient to form a belief about the
truth of an allegation must so state, and the statement has
the effect of a denial.
(6) Effect of Failing to Deny. An allegation -- other than one
relating to the amount of damages -- is admitted if a responsive
pleading is required and the allegation is not denied. If a
responsive pleading is not required, an allegation is considered
denied or avoided.
(c) AFFIRMATIVE DEFENSES.
(1) In General. In responding to a pleading, a party must affirmatively
state any avoidance or affirmative defense, includ-
ing:
* accord and satisfaction;
* arbitration and award;
* assumption of risk;
* contributory negligence;
* discharge in bankruptcy;
13 Rule 9FEDERAL RULES OF CIVIL PROCEDURE
* duress;
* estoppel;
* failure of consideration;
* fraud;
* illegality;
* injury by fellow servant;
* laches;
* license;
* payment;
* release;
* res judicata;
* statute of frauds;
* statute of limitations; and
* waiver.
(2) Mistaken Designation. If a party mistakenly designates a
defense as a counterclaim, or a counterclaim as a defense, the
court must, if justice requires, treat the pleading as though it
were correctly designated, and may impose terms for doing so.
(d) PLEADING TO BE CONCISE AND DIRECT; ALTERNATIVE STATEMENTS;
INCONSISTENCY.
(1) In General. Each allegation must be simple, concise, and
direct. No technical form is required.
(2) Alternative Statements of a Claim or Defense. A party may
set out 2 or more statements of a claim or defense alternatively
or hypothetically, either in a single count or defense
or in separate ones. If a party makes alternative statements,
the pleading is sufficient if any one of them is sufficient.
(3) Inconsistent Claims or Defenses. A party may state as many
separate claims or defenses as it has, regardless of consist-
ency.
(e) CONSTRUING PLEADINGS. Pleadings must be construed so as to
do justice.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 9. Pleading Special Matters
(a) CAPACITY OR AUTHORITY TO SUE; LEGAL EXISTENCE.
(1) In General. Except when required to show that the court
has jurisdiction, a pleading need not allege:
(A) a party's capacity to sue or be sued;
(B) a party's authority to sue or be sued in a representative
capacity; or
(C) the legal existence of an organized association of persons
that is made a party.
(2) Raising Those Issues. To raise any of those issues, a party
must do so by a specific denial, which must state any supporting
facts that are peculiarly within the party's knowledge.
(b) FRAUD OR MISTAKE; CONDITIONS OF MIND. In alleging fraud or
mistake, a party must state with particularity the circumstances
constituting fraud or mistake. Malice, intent, knowledge, and
other conditions of a person's mind may be alleged generally.
(c) CONDITIONS PRECEDENT. In pleading conditions precedent, it
suffices to allege generally that all conditions precedent have occurred
or been performed. But when denying that a condition
14Rule 10 FEDERAL RULES OF CIVIL PROCEDURE
precedent has occurred or been performed, a party must do so with
particularity.
(d) OFFICIAL DOCUMENT OR ACT. In pleading an official document
or official act, it suffices to allege that the document was legally
issued or the act legally done.
(e) JUDGMENT. In pleading a judgment or decision of a domestic
or foreign court, a judicial or quasi-judicial tribunal, or a board
or officer, it suffices to plead the judgment or decision without
showing jurisdiction to render it.
(f) TIME AND PLACE. An allegation of time or place is material
when testing the sufficiency of a pleading.
(g) SPECIAL DAMAGES. If an item of special damage is claimed,
it must be specifically stated.
(h) ADMIRALTY OR MARITIME CLAIM.
(1) How Designated. If a claim for relief is within the admiralty
or maritime jurisdiction and also within the court's subject-matter
jurisdiction on some other ground, the pleading
may designate the claim as an admiralty or maritime claim
for purposes of Rules 14(c), 38(e), and 82 and the Supplemental
Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions. A claim cognizable only in the admiralty or maritime
jurisdiction is an admiralty or maritime claim for those purposes,
whether or not so designated.
(2) Designation for Appeal. A case that includes an admiralty
or maritime claim within this subdivision (h) is an admiralty
case within 28 U.S.C. § 1292(a)(3).
(As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July
1, 1968; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 12, 2006, eff. Dec. 1, 2006; Apr.
30, 2007, eff. Dec. 1, 2007.)
Rule 10. Form of Pleadings
(a) CAPTION; NAMES OF PARTIES. Every pleading must have a caption
with the court's name, a title, a file number, and a Rule 7(a)
designation. The title of the complaint must name all the parties;
the title of other pleadings, after naming the first party on each
side, may refer generally to other parties.
(b) PARAGRAPHS; SEPARATE STATEMENTS. A party must state its
claims or defenses in numbered paragraphs, each limited as far as
practicable to a single set of circumstances. A later pleading may
refer by number to a paragraph in an earlier pleading. If doing so
would promote clarity, each claim founded on a separate transaction
or occurrence -- and each defense other than a denial --
must be stated in a separate count or defense.
(c) ADOPTION BY REFERENCE; EXHIBITS. A statement in a pleading
may be adopted by reference elsewhere in the same pleading or in
any other pleading or motion. A copy of a written instrument that
is an exhibit to a pleading is a part of the pleading for all pur-
poses.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 11. Signing Pleadings, Motions, and Other Papers; Representations
to the Court; Sanctions
(a) SIGNATURE. Every pleading, written motion, and other paper
must be signed by at least one attorney of record in the attorney's
15 Rule 11FEDERAL RULES OF CIVIL PROCEDURE
name -- or by a party personally if the party is unrepresented.
The paper must state the signer's address, e-mail address, and
telephone number. Unless a rule or statute specifically states
otherwise, a pleading need not be verified or accompanied by an
affidavit. The court must strike an unsigned paper unless the
omission is promptly corrected after being called to the attorney's
or party's attention.
(b) REPRESENTATIONS TO THE COURT. By presenting to the court
a pleading, written motion, or other paper -- whether by signing,
filing, submitting, or later advocating it -- an attorney or unrepresented
party certifies that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under
the circumstances:
(1) it is not being presented for any improper purpose, such
as to harass, cause unnecessary delay, or needlessly increase
the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted
by existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing
new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or discovery;
and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based
on belief or a lack of information.
(c) SANCTIONS.
(1) In General. If, after notice and a reasonable opportunity
to respond, the court determines that Rule 11(b) has been violated,
the court may impose an appropriate sanction on any
attorney, law firm, or party that violated the rule or is responsible
for the violation. Absent exceptional circumstances,
a law firm must be held jointly responsible for a violation
committed by its partner, associate, or employee.
(2) Motion for Sanctions. A motion for sanctions must be
made separately from any other motion and must describe the
specific conduct that allegedly violates Rule 11(b). The motion
must be served under Rule 5, but it must not be filed or be presented
to the court if the challenged paper, claim, defense,
contention, or denial is withdrawn or appropriately corrected
within 21 days after service or within another time the court
sets. If warranted, the court may award to the prevailing
party the reasonable expenses, including attorney's fees, incurred
for the motion.
(3) On the Court's Initiative. On its own, the court may order
an attorney, law firm, or party to show cause why conduct
specifically described in the order has not violated Rule 11(b).
(4) Nature of a Sanction. A sanction imposed under this rule
must be limited to what suffices to deter repetition of the conduct
or comparable conduct by others similarly situated. The
sanction may include nonmonetary directives; an order to pay
a penalty into court; or, if imposed on motion and warranted
for effective deterrence, an order directing payment to the
16Rule 12 FEDERAL RULES OF CIVIL PROCEDURE
movant of part or all of the reasonable attorney's fees and
other expenses directly resulting from the violation.
(5) Limitations on Monetary Sanctions. The court must not impose
a monetary sanction:
(A) against a represented party for violating Rule
11(b)(2); or
(B) on its own, unless it issued the show-cause order
under Rule 11(c)(3) before voluntary dismissal or settlement
of the claims made by or against the party that is,
or whose attorneys are, to be sanctioned.
(6) Requirements for an Order. An order imposing a sanction
must describe the sanctioned conduct and explain the basis for
the sanction.
(d) INAPPLICABILITY TO DISCOVERY. This rule does not apply to
disclosures and discovery requests, responses, objections, and motions
under Rules 26 through 37.
(As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 12. Defenses and Objections: When and How Presented; Motion
for Judgment on the Pleadings; Consolidating Motions;
Waiving Defenses; Pretrial Hearing
(a) TIME TO SERVE A RESPONSIVE PLEADING.
(1) In General. Unless another time is specified by this rule
or a federal statute, the time for serving a responsive pleading
is as follows:
(A) A defendant must serve an answer:
(i) within 20 days after being served with the summons
and complaint; or
(ii) if it has timely waived service under Rule 4(d),
within 60 days after the request for a waiver was sent,
or within 90 days after it was sent to the defendant
outside any judicial district of the United States.
(B) A party must serve an answer to a counterclaim or
crossclaim within 20 days after being served with the
pleading that states the counterclaim or crossclaim.
(C) A party must serve a reply to an answer within 20
days after being served with an order to reply, unless the
order specifies a different time.
(2) United States and Its Agencies, Officers, or Employees Sued
in an Official Capacity. The United States, a United States
agency, or a United States officer or employee sued only in an
official capacity must serve an answer to a complaint, counterclaim,
or crossclaim within 60 days after service on the
United States attorney.
(3) United States Officers or Employees Sued in an Individual
Capacity. A United States officer or employee sued in an individual
capacity for an act or omission occurring in connection
with duties performed on the United States' behalf must serve
an answer to a complaint, counterclaim, or crossclaim within
60 days after service on the officer or employee or service on
the United States attorney, whichever is later.
(4) Effect of a Motion. Unless the court sets a different time,
serving a motion under this rule alters these periods as fol-
lows:
17 Rule 12FEDERAL RULES OF CIVIL PROCEDURE
(A) if the court denies the motion or postpones its disposition
until trial, the responsive pleading must be served
within 10 days after notice of the court's action; or
(B) if the court grants a motion for a more definite
statement, the responsive pleading must be served within
10 days after the more definite statement is served.
(b) HOW TO PRESENT DEFENSES. Every defense to a claim for relief
in any pleading must be asserted in the responsive pleading if
one is required. But a party may assert the following defenses by
motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted;
and
(7) failure to join a party under Rule 19.
A motion asserting any of these defenses must be made before
pleading if a responsive pleading is allowed. If a pleading sets out
a claim for relief that does not require a responsive pleading, an
opposing party may assert at trial any defense to that claim. No
defense or objection is waived by joining it with one or more other
defenses or objections in a responsive pleading or in a motion.
(c) MOTION FOR JUDGMENT ON THE PLEADINGS. After the pleadings
are closed -- but early enough not to delay trial -- a party may
move for judgment on the pleadings.
(d) RESULT OF PRESENTING MATTERS OUTSIDE THE PLEADINGS. If,
on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings
are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56. All
parties must be given a reasonable opportunity to present all the
material that is pertinent to the motion.
(e) MOTION FOR A MORE DEFINITE STATEMENT. A party may move
for a more definite statement of a pleading to which a responsive
pleading is allowed but which is so vague or ambiguous that the
party cannot reasonably prepare a response. The motion must be
made before filing a responsive pleading and must point out the
defects complained of and the details desired. If the court orders
a more definite statement and the order is not obeyed within 10
days after notice of the order or within the time the court sets,
the court may strike the pleading or issue any other appropriate
order.
(f) MOTION TO STRIKE. The court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to
the pleading or, if a response is not allowed, within 20 days
after being served with the pleading.
(g) JOINING MOTIONS.
(1) Right to Join. A motion under this rule may be joined with
any other motion allowed by this rule.
(2) Limitation on Further Motions. Except as provided in Rule
12(h)(2) or (3), a party that makes a motion under this rule
18Rule 13 FEDERAL RULES OF CIVIL PROCEDURE
must not make another motion under this rule raising a defense
or objection that was available to the party but omitted
from its earlier motion.
(h) WAIVING AND PRESERVING CERTAIN DEFENSES.
(1) When Some Are Waived. A party waives any defense listed
in Rule 12(b)(2)­(5) by:
(A) omitting it from a motion in the circumstances described
in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an
amendment allowed by Rule 15(a)(1) as a matter of
course.
(2) When to Raise Others. Failure to state a claim upon which
relief can be granted, to join a person required by Rule 19(b),
or to state a legal defense to a claim may be raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
(3) Lack of Subject-Matter Jurisdiction. If the court determines
at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.
(i) HEARING BEFORE TRIAL. If a party so moves, any defense listed
in Rule 12(b)(1)­(7) -- whether made in a pleading or by motion
-- and a motion under Rule 12(c) must be heard and decided before
trial unless the court orders a deferral until trial.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr.
30, 2007, eff. Dec. 1, 2007.)
Rule 13. Counterclaim and Crossclaim
(a) COMPULSORY COUNTERCLAIM.
(1) In General. A pleading must state as a counterclaim any
claim that -- at the time of its service -- the pleader has
against an opposing party if the claim:
(A) arises out of the transaction or occurrence that is
the subject matter of the opposing party's claim; and
(B) does not require adding another party over whom the
court cannot acquire jurisdiction.
(2) Exceptions. The pleader need not state the claim if:
(A) when the action was commenced, the claim was the
subject of another pending action; or
(B) the opposing party sued on its claim by attachment
or other process that did not establish personal jurisdiction
over the pleader on that claim, and the pleader does
not assert any counterclaim under this rule.
(b) PERMISSIVE COUNTERCLAIM. A pleading may state as a counterclaim
against an opposing party any claim that is not compul-
sory.
(c) RELIEF SOUGHT IN A COUNTERCLAIM. A counterclaim need not
diminish or defeat the recovery sought by the opposing party. It
may request relief that exceeds in amount or differs in kind from
the relief sought by the opposing party.
19 Rule 14FEDERAL RULES OF CIVIL PROCEDURE
(d) COUNTERCLAIM AGAINST THE UNITED STATES. These rules do
not expand the right to assert a counterclaim -- or to claim a
credit -- against the United States or a United States officer or
agency.
(e) COUNTERCLAIM MATURING OR ACQUIRED AFTER PLEADING. The
court may permit a party to file a supplemental pleading asserting
a counterclaim that matured or was acquired by the party
after serving an earlier pleading.
(f) OMITTED COUNTERCLAIM. The court may permit a party to
amend a pleading to add a counterclaim if it was omitted through
oversight, inadvertence, or excusable neglect or if justice so re-
quires.
(g) CROSSCLAIM AGAINST A COPARTY. A pleading may state as a
crossclaim any claim by one party against a coparty if the claim
arises out of the transaction or occurrence that is the subject
matter of the original action or of a counterclaim, or if the claim
relates to any property that is the subject matter of the original
action. The crossclaim may include a claim that the coparty is or
may be liable to the crossclaimant for all or part of a claim asserted
in the action against the crossclaimant.
(h) JOINING ADDITIONAL PARTIES. Rules 19 and 20 govern the addition
of a person as a party to a counterclaim or crossclaim.
(i) SEPARATE TRIALS; SEPARATE JUDGMENTS. If the court orders
separate trials under Rule 42(b), it may enter judgment on a counterclaim
or crossclaim under Rule 54(b) when it has jurisdiction to
do so, even if the opposing party's claims have been dismissed or
otherwise resolved.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 14. Third-Party Practice
(a) WHEN A DEFENDING PARTY MAY BRING IN A THIRD PARTY.
(1) Timing of the Summons and Complaint. A defending party
may, as third-party plaintiff, serve a summons and complaint
on a nonparty who is or may be liable to it for all or part of
the claim against it. But the third-party plaintiff must, by
motion, obtain the court's leave if it files the third-party complaint
more than 10 days after serving its original answer.
(2) Third-Party Defendant's Claims and Defenses. The person
served with the summons and third-party complaint -- the
``third-party defendant'':
(A) must assert any defense against the third-party
plaintiff's claim under Rule 12;
(B) must assert any counterclaim against the third-party
plaintiff under Rule 13(a), and may assert any counterclaim
against the third-party plaintiff under Rule 13(b) or
any crossclaim against another third-party defendant
under Rule 13(g);
(C) may assert against the plaintiff any defense that the
third-party plaintiff has to the plaintiff's claim; and
(D) may also assert against the plaintiff any claim arising
out of the transaction or occurrence that is the subject
matter of the plaintiff's claim against the third-party
plaintiff.
20Rule 15 FEDERAL RULES OF CIVIL PROCEDURE
(3) Plaintiff's Claims Against a Third-Party Defendant. The
plaintiff may assert against the third-party defendant any
claim arising out of the transaction or occurrence that is the
subject matter of the plaintiff's claim against the third-party
plaintiff. The third-party defendant must then assert any defense
under Rule 12 and any counterclaim under Rule 13(a),
and may assert any counterclaim under Rule 13(b) or any
crossclaim under Rule 13(g).
(4) Motion to Strike, Sever, or Try Separately. Any party may
move to strike the third-party claim, to sever it, or to try it
separately.
(5) Third-Party Defendant's Claim Against a Nonparty. A thirdparty
defendant may proceed under this rule against a nonparty
who is or may be liable to the third-party defendant for
all or part of any claim against it.
(6) Third-Party Complaint In Rem. If it is within the admiralty
or maritime jurisdiction, a third-party complaint may
be in rem. In that event, a reference in this rule to the ``summons''
includes the warrant of arrest, and a reference to the
defendant or third-party plaintiff includes, when appropriate,
a person who asserts a right under Supplemental Rule
C(6)(a)(i) in the property arrested.
(b) WHEN A PLAINTIFF MAY BRING IN A THIRD PARTY. When a
claim is asserted against a plaintiff, the plaintiff may bring in a
third party if this rule would allow a defendant to do so.
(c) ADMIRALTY OR MARITIME CLAIM.
(1) Scope of Impleader. If a plaintiff asserts an admiralty or
maritime claim under Rule 9(h), the defendant or a person who
asserts a right under Supplemental Rule C(6)(a)(i) may, as a
third-party plaintiff, bring in a third-party defendant who
may be wholly or partly liable -- either to the plaintiff or to
the third-party plaintiff -- for remedy over, contribution, or
otherwise on account of the same transaction, occurrence, or
series of transactions or occurrences.
(2) Defending Against a Demand for Judgment for the Plaintiff.
The third-party plaintiff may demand judgment in the plaintiff's
favor against the third-party defendant. In that event,
the third-party defendant must defend under Rule 12 against
the plaintiff's claim as well as the third-party plaintiff's
claim; and the action proceeds as if the plaintiff had sued both
the third-party defendant and the third-party plaintiff.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006; Apr.
30, 2007, eff. Dec. 1, 2007.)
Rule 15. Amended and Supplemental Pleadings
(a) AMENDMENTS BEFORE TRIAL.
(1) Amending as a Matter of Course. A party may amend its
pleading once as a matter of course:
(A) before being served with a responsive pleading; or
(B) within 20 days after serving the pleading if a responsive
pleading is not allowed and the action is not yet on
the trial calendar.
21 Rule 15FEDERAL RULES OF CIVIL PROCEDURE
(2) Other Amendments. In all other cases, a party may amend
its pleading only with the opposing party's written consent or
the court's leave. The court should freely give leave when justice
so requires.
(3) Time to Respond. Unless the court orders otherwise, any
required response to an amended pleading must be made within
the time remaining to respond to the original pleading or
within 10 days after service of the amended pleading, whichever
is later.
(b) AMENDMENTS DURING AND AFTER TRIAL.
(1) Based on an Objection at Trial. If, at trial, a party objects
that evidence is not within the issues raised in the pleadings,
the court may permit the pleadings to be amended. The court
should freely permit an amendment when doing so will aid in
presenting the merits and the objecting party fails to satisfy
the court that the evidence would prejudice that party's action
or defense on the merits. The court may grant a continuance
to enable the objecting party to meet the evidence.
(2) For Issues Tried by Consent. When an issue not raised by
the pleadings is tried by the parties' express or implied consent,
it must be treated in all respects as if raised in the pleadings.
A party may move -- at any time, even after judgment
-- to amend the pleadings to conform them to the evidence
and to raise an unpleaded issue. But failure to amend does not
affect the result of the trial of that issue.
(c) RELATION BACK OF AMENDMENTS.
(1) When an Amendment Relates Back. An amendment to a
pleading relates back to the date of the original pleading
when:
(A) the law that provides the applicable statute of limitations
allows relation back;
(B) the amendment asserts a claim or defense that arose
out of the conduct, transaction, or occurrence set out -- or
attempted to be set out -- in the original pleading; or
(C) the amendment changes the party or the naming of
the party against whom a claim is asserted, if Rule
15(c)(1)(B) is satisfied and if, within the period provided by
Rule 4(m) for serving the summons and complaint, the
party to be brought in by amendment:
(i) received such notice of the action that it will not
be prejudiced in defending on the merits; and
(ii) knew or should have known that the action
would have been brought against it, but for a mistake
concerning the proper party's identity.
(2) Notice to the United States. When the United States or a
United States officer or agency is added as a defendant by
amendment, the notice requirements of Rule 15(c)(1)(C)(i) and
(ii) are satisfied if, during the stated period, process was delivered
or mailed to the United States attorney or the United
States attorney's designee, to the Attorney General of the
United States, or to the officer or agency.
(d) SUPPLEMENTAL PLEADINGS. On motion and reasonable notice,
the court may, on just terms, permit a party to serve a supplemental
pleading setting out any transaction, occurrence, or event
that happened after the date of the pleading to be supplemented.
22Rule 16 FEDERAL RULES OF CIVIL PROCEDURE
The court may permit supplementation even though the original
pleading is defective in stating a claim or defense. The court may
order that the opposing party plead to the supplemental pleading
within a specified time.
(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July
1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991;
Dec. 9, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 16. Pretrial Conferences; Scheduling; Management
(a) PURPOSES OF A PRETRIAL CONFERENCE. In any action, the
court may order the attorneys and any unrepresented parties to
appear for one or more pretrial conferences for such purposes as:
(1) expediting 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 settlement.
(b) SCHEDULING.
(1) Scheduling Order. Except in categories of actions exempted
by local rule, the district judge -- or a magistrate judge
when authorized by local rule -- must issue a scheduling order:
(A) after receiving the parties' report under Rule 26(f); or
(B) after consulting with the parties' attorneys and any
unrepresented parties at a scheduling conference or by
telephone, mail, or other means.
(2) Time to Issue. The judge must issue the scheduling order
as soon as practicable, but in any event within the earlier of
120 days after any defendant has been served with the complaint
or 90 days after any defendant has appeared.
(3) Contents of the Order.
(A) Required Contents. The scheduling order must limit
the time to join other parties, amend the pleadings, complete
discovery, and file motions.
(B) Permitted Contents. The scheduling order may:
(i) modify the timing of disclosures under Rules 26(a)
and 26(e)(1);
(ii) modify the extent of discovery;
(iii) provide for disclosure or discovery of electronically
stored information;
(iv) include any agreements the parties reach for asserting
claims of privilege or of protection as trialpreparation
material after information is produced;
(v) set dates for pretrial conferences and for trial;
and
(vi) include other appropriate matters.
(4) Modifying a Schedule. A schedule may be modified only for
good cause and with the judge's consent.
(c) ATTENDANCE AND MATTERS FOR CONSIDERATION AT A PRETRIAL
CONFERENCE.
(1) Attendance. A represented party must authorize at least
one of its attorneys to make stipulations and admissions
23 Rule 16FEDERAL RULES OF CIVIL PROCEDURE
about all matters that can reasonably be anticipated for discussion
at a pretrial conference. If appropriate, the court may
require that a party or its representative be present or reasonably
available by other means to consider possible settlement.
(2) Matters for Consideration. At any pretrial conference, the
court may consider and take appropriate action on the following
matters:
(A) formulating and simplifying the issues, and eliminating
frivolous claims or defenses;
(B) amending the pleadings if necessary or desirable;
(C) obtaining admissions and stipulations about facts
and documents to avoid unnecessary proof, and ruling in
advance on the admissibility of evidence;
(D) avoiding unnecessary proof and cumulative evidence,
and limiting the use of testimony under Federal Rule of
Evidence 702;
(E) determining the appropriateness and timing of summary
adjudication under Rule 56;
(F) controlling and scheduling discovery, including orders
affecting disclosures and discovery under Rule 26 and
Rules 29 through 37;
(G) identifying witnesses and documents, scheduling the
filing and exchange of any pretrial briefs, and setting
dates for further conferences and for trial;
(H) referring matters to a magistrate judge or a master;
(I) settling the case and using special procedures to assist
in resolving the dispute when authorized by statute or
local rule;
(J) determining the form and content of the pretrial
order;
(K) disposing of pending motions;
(L) adopting special procedures for managing potentially
difficult or protracted actions that may involve complex
issues, multiple parties, difficult legal questions, or unusual
proof problems;
(M) ordering a separate trial under Rule 42(b) of a claim,
counterclaim, crossclaim, third-party claim, or particular
issue;
(N) ordering the presentation of evidence early in the
trial on a manageable issue that might, on the evidence,
be the basis for a judgment as a matter of law under Rule
50(a) or a judgment on partial findings under Rule 52(c);
(O) establishing a reasonable limit on the time allowed
to present evidence; and
(P) facilitating in other ways the just, speedy, and inexpensive
disposition of the action.
(d) PRETRIAL ORDERS. After any conference under this rule, the
court should issue an order reciting the action taken. This order
controls the course of the action unless the court modifies it.
(e) FINAL PRETRIAL CONFERENCE AND ORDERS. The court may
hold a final pretrial conference to formulate a trial plan, including
a plan to facilitate the admission of evidence. The conference
must be held as close to the start of trial as is reasonable, and
must be attended by at least one attorney who will conduct the
trial for each party and by any unrepresented party. The court
24Rule 17 FEDERAL RULES OF CIVIL PROCEDURE
may modify the order issued after a final pretrial conference only
to prevent manifest injustice.
(f) SANCTIONS.
(1) In General. On motion or on its own, the court may issue
any just orders, including those authorized by Rule
37(b)(2)(A)(ii)­(vii), if a party or its attorney:
(A) fails to appear at a scheduling or other pretrial con-
ference;
(B) is substantially unprepared to participate -- or does
not participate in good faith -- in the conference; or
(C) fails to obey a scheduling or other pretrial order.
(2) Imposing Fees and Costs. Instead of or in addition to any
other sanction, the court must order the party, its attorney,
or both to pay the reasonable expenses -- including attorney's
fees -- incurred because of any noncompliance with this rule,
unless the noncompliance was substantially justified or other
circumstances make an award of expenses unjust.
(As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 12, 2006, eff. Dec. 1, 2006;
Apr. 30, 2007, eff. Dec. 1, 2007.)
TITLE IV. PARTIES
Rule 17. Plaintiff and Defendant; Capacity; Public Officers
(a) REAL PARTY IN INTEREST.
(1) Designation in General. An action must be prosecuted in
the name of the real party in interest. The following may sue
in their own names without joining the person for whose benefit
the action is brought:
(A) an executor;
(B) an administrator;
(C) a guardian;
(D) a bailee;
(E) a trustee of an express trust;
(F) a party with whom or in whose name a contract has
been made for another's benefit; and
(G) a party authorized by statute.
(2) Action in the Name of the United States for Another's Use or
Benefit. When a federal statute so provides, an action for another's
use or benefit must be brought in the name of the
United States.
(3) Joinder of the Real Party in Interest. The court may not
dismiss an action for failure to prosecute in the name of the
real party in interest until, after an objection, a reasonable
time has been allowed for the real party in interest to ratify,
join, or be substituted into the action. After ratification, joinder,
or substitution, the action proceeds as if it had been originally
commenced by the real party in interest.
(b) CAPACITY TO SUE OR BE SUED. Capacity to sue or be sued is
determined as follows:
(1) for an individual who is not acting in a representative capacity,
by the law of the individual's domicile;
(2) for a corporation, by the law under which it was organized;
and
25 Rule 19FEDERAL RULES OF CIVIL PROCEDURE
(3) for all other parties, by the law of the state where the
court is located, except that:
(A) a partnership or other unincorporated association
with no such capacity under that state's law may sue or be
sued in its common name to enforce a substantive right
existing under the United States Constitution or laws; and
(B) 28 U.S.C. §§ 754 and 959(a) govern the capacity of a receiver
appointed by a United States court to sue or be sued
in a United States court.
(c) MINOR OR INCOMPETENT PERSON.
(1) With a Representative. The following representatives may
sue or defend on behalf of a minor or an incompetent person:
(A) a general guardian;
(B) a committee;
(C) a conservator; or
(D) a like fiduciary.
(2) Without a Representative. A minor or an incompetent person
who does not have a duly appointed representative may
sue by a next friend or by a guardian ad litem. The court must
appoint a guardian ad litem -- or issue another appropriate
order -- to protect a minor or incompetent person who is unrepresented
in an action.
(d) PUBLIC OFFICER'S TITLE AND NAME. A public officer who sues
or is sued in an official capacity may be designated by official
title rather than by name, but the court may order that the officer's
name be added.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 25, 1988, eff. Aug. 1, 1988; Nov. 18, 1988; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 18. Joinder of Claims
(a) IN GENERAL. A party asserting a claim, counterclaim,
crossclaim, or third-party claim may join, as independent or alternative
claims, as many claims as it has against an opposing party.
(b) JOINDER OF CONTINGENT CLAIMS. A party may join two claims
even though one of them is contingent on the disposition of the
other; but the court may grant relief only in accordance with the
parties' relative substantive rights. In particular, a plaintiff may
state a claim for money and a claim to set aside a conveyance
that is fraudulent as to that plaintiff, without first obtaining a
judgment for the money.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 19. Required Joinder of Parties
(a) PERSONS REQUIRED TO BE JOINED IF FEASIBLE.
(1) Required Party. A person who is subject to service of process
and whose joinder will not deprive the court of subjectmatter
jurisdiction must be joined as a party if:
(A) in that person's absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the subject
of the action and is so situated that disposing of the action
in the person's absence may:
26Rule 20 FEDERAL RULES OF CIVIL PROCEDURE
(i) as a practical matter impair or impede the person's
ability to protect the interest; or
(ii) leave an existing party subject to a substantial
risk of incurring double, multiple, or otherwise inconsistent
obligations because of the interest.
(2) Joinder by Court Order. If a person has not been joined as
required, the court must order that the person be made a
party. A person who refuses to join as a plaintiff may be made
either a defendant or, in a proper case, an involuntary plain-
tiff.
(3) Venue. If a joined party objects to venue and the joinder
would make venue improper, the court must dismiss that
party.
(b) WHEN JOINDER IS NOT FEASIBLE. If a person who is required
to be joined if feasible cannot be joined, the court must determine
whether, in equity and good conscience, the action should proceed
among the existing parties or should be dismissed. The factors for
the court to consider include:
(1) the extent to which a judgment rendered in the person's
absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or
avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person's absence
would be adequate; and
(4) whether the plaintiff would have an adequate remedy if
the action were dismissed for nonjoinder.
(c) PLEADING THE REASONS FOR NONJOINDER. When asserting a
claim for relief, a party must state:
(1) the name, if known, of any person who is required to be
joined if feasible but is not joined; and
(2) the reasons for not joining that person.
(d) EXCEPTION FOR CLASS ACTIONS. This rule is subject to Rule
23.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 20. Permissive Joinder of Parties
(a) PERSONS WHO MAY JOIN OR BE JOINED.
(1) Plaintiffs. Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or
in the alternative with respect to or arising out of the
same transaction, occurrence, or series of transactions or
occurrences; and
(B) any question of law or fact common to all plaintiffs
will arise in the action.
(2) Defendants. Persons -- as well as a vessel, cargo, or other
property subject to admiralty process in rem -- may be joined
in one action as defendants if:
(A) any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising
out of the same transaction, occurrence, or series of transactions
or occurrences; and
27 Rule 23FEDERAL RULES OF CIVIL PROCEDURE
(B) any question of law or fact common to all defendants
will arise in the action.
(3) Extent of Relief. Neither a plaintiff nor a defendant need
be interested in obtaining or defending against all the relief
demanded. The court may grant judgment to one or more
plaintiffs according to their rights, and against one or more
defendants according to their liabilities.
(b) PROTECTIVE MEASURES. The court may issue orders -- including
an order for separate trials -- to protect a party against embarrassment,
delay, expense, or other prejudice that arises from
including a person against whom the party asserts no claim and
who asserts no claim against the party.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 21. Misjoinder and Nonjoinder of Parties
Misjoinder of parties is not a ground for dismissing an action.
On motion or on its own, the court may at any time, on just
terms, add or drop a party. The court may also sever any claim
against a party.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 22. Interpleader
(a) GROUNDS.
(1) By a Plaintiff. Persons with claims that may expose a
plaintiff to double or multiple liability may be joined as defendants
and required to interplead. Joinder for interpleader is
proper even though:
(A) the claims of the several claimants, or the titles on
which their claims depend, lack a common origin or are
adverse and independent rather than identical; or
(B) the plaintiff denies liability in whole or in part to
any or all of the claimants.
(2) By a Defendant. A defendant exposed to similar liability
may seek interpleader through a crossclaim or counterclaim.
(b) RELATION TO OTHER RULES AND STATUTES. This rule supplements
-- and does not limit -- the joinder of parties allowed by
Rule 20. The remedy this rule provides is in addition to -- and does
not supersede or limit -- the remedy provided by 28 U.S.C. §§ 1335,
1397, and 2361. An action under those statutes must be conducted
under these rules.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 23. Class Actions
(a) PREREQUISITES. One or more members of a class may sue or
be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect
the interests of the class.
28Rule 23 FEDERAL RULES OF CIVIL PROCEDURE
(b) TYPES OF CLASS ACTIONS. A class action may be maintained
if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual
class members would create a risk of:
(A) inconsistent or varying adjudications with respect to
individual class members that would establish incompatible
standards of conduct for the party opposing the class;
or
(B) adjudications with respect to individual class members
that, as a practical matter, would be dispositive of
the interests of the other members not parties to the individual
adjudications or would substantially impair or impede
their ability to protect their interests;
(2) the party opposing the class has acted or refused to act
on grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate
respecting the class as a whole; or
(3) the court finds that the questions of law or fact common
to class members predominate over any questions affecting
only individual members, and that a class action is superior to
other available methods for fairly and efficiently adjudicating
the controversy. The matters pertinent to these findings in-
clude:
(A) the class members' interests in individually controlling
the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning
the controversy already begun by or against class mem-
bers;
(C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
(c) CERTIFICATION ORDER; NOTICE TO CLASS MEMBERS; JUDGMENT;
ISSUES CLASSES; SUBCLASSES.
(1) Certification Order.
(A) Time to Issue. At an early practicable time after a
person sues or is sued as a class representative, the court
must determine by order whether to certify the action as
a class action.
(B) Defining the Class; Appointing Class Counsel. An order
that certifies a class action must define the class and the
class claims, issues, or defenses, and must appoint class
counsel under Rule 23(g).
(C) Altering or Amending the Order. An order that grants
or denies class certification may be altered or amended before
final judgment.
(2) Notice.
(A) For (b)(1) or (b)(2) Classes. For any class certified
under Rule 23(b)(1) or (b)(2), the court may direct appropriate
notice to the class.
(B) For (b)(3) Classes. For any class certified under Rule
23(b)(3), the court must direct to class members the best
notice that is practicable under the circumstances, including
individual notice to all members who can be identified
through reasonable effort. The notice must clearly and
concisely state in plain, easily understood language:
29 Rule 23FEDERAL RULES OF CIVIL PROCEDURE
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance
through an attorney if the member so desires;
(v) that the court will exclude from the class any
member who requests exclusion;
(vi) the time and manner for requesting exclusion;
and
(vii) the binding effect of a class judgment on members
under Rule 23(c)(3).
(3) Judgment. Whether or not favorable to the class, the judgment
in a class action must:
(A) for any class certified under Rule 23(b)(1) or (b)(2), include
and describe those whom the court finds to be class
members; and
(B) for any class certified under Rule 23(b)(3), include and
specify or describe those to whom the Rule 23(c)(2) notice
was directed, who have not requested exclusion, and whom
the court finds to be class members.
(4) Particular Issues. When appropriate, an action may be
brought or maintained as a class action with respect to particular
issues.
(5) Subclasses. When appropriate, a class may be divided into
subclasses that are each treated as a class under this rule.
(d) CONDUCTING THE ACTION.
(1) In General. In conducting an action under this rule, the
court may issue orders that:
(A) determine the course of proceedings or prescribe
measures to prevent undue repetition or complication in
presenting evidence or argument;
(B) require -- to protect class members and fairly conduct
the action -- giving appropriate notice to some or all
class members of:
(i) any step in the action;
(ii) the proposed extent of the judgment; or
(iii) the members' opportunity to signify whether
they consider the representation fair and adequate, to
intervene and present claims or defenses, or to otherwise
come into the action;
(C) impose conditions on the representative parties or on
intervenors;
(D) require that the pleadings be amended to eliminate
allegations about representation of absent persons and
that the action proceed accordingly; or
(E) deal with similar procedural matters.
(2) Combining and Amending Orders. An order under Rule
23(d)(1) may be altered or amended from time to time and may
be combined with an order under Rule 16.
(e) SETTLEMENT, VOLUNTARY DISMISSAL, OR COMPROMISE. The
claims, issues, or defenses of a certified class may be settled, voluntarily
dismissed, or compromised only with the court's approval.
The following procedures apply to a proposed settlement,
voluntary dismissal, or compromise:
(1) The court must direct notice in a reasonable manner to
all class members who would be bound by the proposal.
30Rule 23 FEDERAL RULES OF CIVIL PROCEDURE
(2) If the proposal would bind class members, the court may
approve it only after a hearing and on finding that it is fair,
reasonable, and adequate.
(3) The parties seeking approval must file a statement identifying
any agreement made in connection with the proposal.
(4) If the class action was previously certified under Rule
23(b)(3), the court may refuse to approve a settlement unless
it affords a new opportunity to request exclusion to individual
class members who had an earlier opportunity to request exclusion
but did not do so.
(5) Any class member may object to the proposal if it requires
court approval under this subdivision (e); the objection
may be withdrawn only with the court's approval.
(f) APPEALS. A court of appeals may permit an appeal from an
order granting or denying class-action certification under this
rule if a petition for permission to appeal is filed with the circuit
clerk within 10 days after the order is entered. An appeal does not
stay proceedings in the district court unless the district judge or
the court of appeals so orders.
(g) CLASS COUNSEL.
(1) Appointing Class Counsel. Unless a statute provides otherwise,
a court that certifies a class must appoint class counsel.
In appointing class counsel, the court:
(A) must consider:
(i) the work counsel has done in identifying or investigating
potential claims in the action;
(ii) counsel's experience in handling class actions,
other complex litigation, and the types of claims asserted
in the action;
(iii) counsel's knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing
the class;
(B) may consider any other matter pertinent to counsel's
ability to fairly and adequately represent the interests of
the class;
(C) may order potential class counsel to provide information
on any subject pertinent to the appointment and to
propose terms for attorney's fees and nontaxable costs;
(D) may include in the appointing order provisions about
the award of attorney's fees or nontaxable costs under
Rule 23(h); and
(E) may make further orders in connection with the ap-
pointment.
(2) Standard for Appointing Class Counsel. When one applicant
seeks appointment as class counsel, the court may appoint
that applicant only if the applicant is adequate under Rule
23(g)(1) and (4). If more than one adequate applicant seeks appointment,
the court must appoint the applicant best able to
represent the interests of the class.
(3) Interim Counsel. The court may designate interim counsel
to act on behalf of a putative class before determining whether
to certify the action as a class action.
(4) Duty of Class Counsel. Class counsel must fairly and adequately
represent the interests of the class.
31 Rule 23.2FEDERAL RULES OF CIVIL PROCEDURE
(h) ATTORNEY'S FEES AND NONTAXABLE COSTS. In a certified class
action, the court may award reasonable attorney's fees and nontaxable
costs that are authorized by law or by the parties' agreement.
The following procedures apply:
(1) A claim for an award must be made by motion under Rule
54(d)(2), subject to the provisions of this subdivision (h), at a
time the court sets. Notice of the motion must be served on
all parties and, for motions by class counsel, directed to class
members in a reasonable manner.
(2) A class member, or a party from whom payment is
sought, may object to the motion.
(3) The court may hold a hearing and must find the facts and
state its legal conclusions under Rule 52(a).
(4) The court may refer issues related to the amount of the
award to a special master or a magistrate judge, as provided
in Rule 54(d)(2)(D).
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 27, 2003, eff. Dec. 1, 2003;
Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 23.1. Derivative Actions
(a) PREREQUISITES. This rule applies when one or more shareholders
or members of a corporation or an unincorporated association
bring a derivative action to enforce a right that the corporation
or association may properly assert but has failed to enforce.
The derivative action may not be maintained if it appears that
the plaintiff does not fairly and adequately represent the interests
of shareholders or members who are similarly situated in enforcing
the right of the corporation or association.
(b) PLEADING REQUIREMENTS. The complaint must be verified and
must:
(1) allege that the plaintiff was a shareholder or member at
the time of the transaction complained of, or that the plaintiff's
share or membership later devolved on it by operation of
law;
(2) allege that the action is not a collusive one to confer jurisdiction
that the court would otherwise lack; and
(3) state with particularity:
(A) any effort by the plaintiff to obtain the desired action
from the directors or comparable authority and, if
necessary, from the shareholders or members; and
(B) the reasons for not obtaining the action or not making
the effort.
(c) SETTLEMENT, DISMISSAL, AND COMPROMISE. A derivative action
may be settled, voluntarily dismissed, or compromised only
with the court's approval. Notice of a proposed settlement, voluntary
dismissal, or compromise must be given to shareholders or
members in the manner that the court orders.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 23.2. Actions Relating to Unincorporated Associations
This rule applies to an action brought by or against the members
of an unincorporated association as a class by naming certain
32Rule 24 FEDERAL RULES OF CIVIL PROCEDURE
members as representative parties. The action may be maintained
only if it appears that those parties will fairly and adequately protect
the interests of the association and its members. In conducting
the action, the court may issue any appropriate orders corresponding
with those in Rule 23(d), and the procedure for settlement,
voluntary dismissal, or compromise must correspond with
the procedure in Rule 23(e).
(As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 30, 2007, eff.
Dec. 1, 2007.)
Rule 24. Intervention
(a) INTERVENTION OF RIGHT. On timely motion, the court must
permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal
statute; or
(2) claims an interest relating to the property or transaction
that is the subject of the action, and is so situated that disposing
of the action may as a practical matter impair or impede
the movant's ability to protect its interest, unless existing
parties adequately represent that interest.
(b) PERMISSIVE INTERVENTION.
(1) In General. On timely motion, the court may permit anyone
to intervene who:
(A) is given a conditional right to intervene by a federal
statute; or
(B) has a claim or defense that shares with the main action
a common question of law or fact.
(2) By a Government Officer or Agency. On timely motion, the
court may permit a federal or state governmental officer or
agency to intervene if a party's claim or defense is based on:
(A) a statute or executive order administered by the officer
or agency; or
(B) any regulation, order, requirement, or agreement issued
or made under the statute or executive order.
(3) Delay or Prejudice. In exercising its discretion, the court
must consider whether the intervention will unduly delay or
prejudice the adjudication of the original parties' rights.
(c) NOTICE AND PLEADING REQUIRED. A motion to intervene must
be served on the parties as provided in Rule 5. The motion must
state the grounds for intervention and be accompanied by a pleading
that sets out the claim or defense for which intervention is
sought.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966;
Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 12,
2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 25. Substitution of Parties
(a) DEATH.
(1) Substitution if the Claim Is Not Extinguished. If a party dies
and the claim is not extinguished, the court may order substitution
of the proper party. A motion for substitution may be
made by any party or by the decedent's successor or representative.
If the motion is not made within 90 days after service
33 Rule 26FEDERAL RULES OF CIVIL PROCEDURE
of a statement noting the death, the action by or against the
decedent must be dismissed.
(2) Continuation Among the Remaining Parties. After a party's
death, if the right sought to be enforced survives only to or
against the remaining parties, the action does not abate, but
proceeds in favor of or against the remaining parties. The
death should be noted on the record.
(3) Service. A motion to substitute, together with a notice of
hearing, must be served on the parties as provided in Rule 5
and on nonparties as provided in Rule 4. A statement noting
death must be served in the same manner. Service may be
made in any judicial district.
(b) INCOMPETENCY. If a party becomes incompetent, the court
may, on motion, permit the action to be continued by or against
the party's representative. The motion must be served as provided
in Rule 25(a)(3).
(c) TRANSFER OF INTEREST. If an interest is transferred, the action
may be continued by or against the original party unless the
court, on motion, orders the transferee to be substituted in the action
or joined with the original party. The motion must be served
as provided in Rule 25(a)(3).
(d) PUBLIC OFFICERS; DEATH OR SEPARATION FROM OFFICE. An action
does not abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while
the action is pending. The officer's successor is automatically substituted
as a party. Later proceedings should be in the substituted
party's name, but any misnomer not affecting the parties' substantial
rights must be disregarded. The court may order substitution
at any time, but the absence of such an order does not affect
the substitution.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July
19, 1961; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 30, 2007, eff. Dec. 1, 2007.)
TITLE V. DISCLOSURES AND DISCOVERY
Rule 26. Duty to Disclose; General Provisions Governing Discovery
(a) REQUIRED DISCLOSURES.
(1) Initial Disclosure.
(A) In General. Except as exempted by Rule 26(a)(1)(B) or
as otherwise stipulated or ordered by the court, a party
must, without awaiting a discovery request, provide to the
other parties:
(i) the name and, if known, the address and telephone
number of each individual likely to have discoverable
information -- along with the subjects of that information
-- that the disclosing party may use to support its
claims or defenses, unless the use would be solely for
impeachment;
(ii) a copy -- or a description by category and location
-- of all documents, electronically stored information,
and tangible things that the disclosing party has
in its possession, custody, or control and may use to
support its claims or defenses, unless the use would be
solely for impeachment;
34Rule 26 FEDERAL RULES OF CIVIL PROCEDURE
(iii) a computation of each category of damages
claimed by the disclosing party -- who must also make
available for inspection and copying as under Rule 34
the documents or other evidentiary material, unless
privileged or protected from disclosure, on which each
computation is based, including materials bearing on
the nature and extent of injuries suffered; and
(iv) for inspection and copying as under Rule 34, any
insurance agreement under which an insurance business
may be liable to satisfy all or part of a possible
judgment in the action or to indemnify or reimburse
for payments made to satisfy the judgment.
(B) Proceedings Exempt from Initial Disclosure. The following
proceedings are exempt from initial disclosure:
(i) an action for review on an administrative record;
(ii) a forfeiture action in rem arising from a federal
statute;
(iii) a petition for habeas corpus or any other proceeding
to challenge a criminal conviction or sentence;
(iv) an action brought without an attorney by a person
in the custody of the United States, a state, or a
state subdivision;
(v) an action to enforce or quash an administrative
summons or subpoena;
(vi) an action by the United States to recover benefit
payments;
(vii) an action by the United States to collect on a
student loan guaranteed by the United States;
(viii) a proceeding ancillary to a proceeding in another
court; and
(ix) an action to enforce an arbitration award.
(C) Time for Initial Disclosures -- In General. A party must
make the initial disclosures at or within 14 days after the
parties' Rule 26(f) conference unless a different time is set
by stipulation or court order, or unless a party objects
during the conference that initial disclosures are not appropriate
in this action and states the objection in the
proposed discovery plan. In ruling on the objection, the
court must determine what disclosures, if any, are to be
made and must set the time for disclosure.
(D) Time for Initial Disclosures -- For Parties Served or
Joined Later. A party that is first served or otherwise
joined after the Rule 26(f) conference must make the initial
disclosures within 30 days after being served or joined,
unless a different time is set by stipulation or court order.
(E) Basis for Initial Disclosure; Unacceptable Excuses. A
party must make its initial disclosures based on the information
then reasonably available to it. A party is not excused
from making its disclosures because it has not fully
investigated the case or because it challenges the sufficiency
of another party's disclosures or because another
party has not made its disclosures.
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by
Rule 26(a)(1), a party must disclose to the other parties the
35 Rule 26FEDERAL RULES OF CIVIL PROCEDURE
identity of any witness it may use at trial to present evidence
under Federal Rule of Evidence 702, 703, or 705.
(B) Written Report. Unless otherwise stipulated or ordered
by the court, this disclosure must be accompanied by a
written report -- prepared and signed by the witness -- if
the witness is one retained or specially employed to provide
expert testimony in the case or one whose duties as
the party's employee regularly involve giving expert testimony.
The report must contain:
(i) a complete statement of all opinions the witness
will express and the basis and reasons for them;
(ii) the data or other information considered by the
witness in forming them;
(iii) any exhibits that will be used to summarize or
support them;
(iv) the witness's qualifications, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous
4 years, the witness testified as an expert at trial
or by deposition; and
(vi) a statement of the compensation to be paid for
the study and testimony in the case.
(C) Time to Disclose Expert Testimony. A party must make
these disclosures at the times and in the sequence that the
court orders. Absent a stipulation or a court order, the disclosures
must be made:
(i) at least 90 days before the date set for trial or for
the case to be ready for trial; or
(ii) if the evidence is intended solely to contradict or
rebut evidence on the same subject matter identified
by another party under Rule 26(a)(2)(B), within 30 days
after the other party's disclosure.
(D) Supplementing the Disclosure. The parties must supplement
these disclosures when required under Rule 26(e).
(3) Pretrial Disclosures.
(A) In General. In addition to the disclosures required by
Rule 26(a)(1) and (2), a party must provide to the other parties
and promptly file the following information about the
evidence that it may present at trial other than solely for
impeachment:
(i) the name and, if not previously provided, the address
and telephone number of each witness -- separately
identifying those the party expects to present
and those it may call if the need arises;
(ii) the designation of those witnesses whose testimony
the party expects to present by deposition and,
if not taken stenographically, a transcript of the pertinent
parts of the deposition; and
(iii) an identification of each document or other exhibit,
including summaries of other evidence -- separately
identifying those items the party expects to
offer and those it may offer if the need arises.
(B) Time for Pretrial Disclosures; Objections. Unless the
court orders otherwise, these disclosures must be made at
least 30 days before trial. Within 14 days after they are
36Rule 26 FEDERAL RULES OF CIVIL PROCEDURE
made, unless the court sets a different time, a party may
serve and promptly file a list of the following objections:
any objections to the use under Rule 32(a) of a deposition
designated by another party under Rule 26(a)(3)(A)(ii); and
any objection, together with the grounds for it, that may
be made to the admissibility of materials identified under
Rule 26(a)(3)(A)(iii). An objection not so made -- except for
one under Federal Rule of Evidence 402 or 403 -- is waived
unless excused by the court for good cause.
(4) Form of Disclosures. Unless the court orders otherwise, all
disclosures under Rule 26(a) must be in writing, signed, and
served.
(b) DISCOVERY SCOPE AND LIMITS.
(1) Scope in General. Unless otherwise limited by court order,
the scope of discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense -- including the existence, description,
nature, custody, condition, and location of any documents
or other tangible things and the identity and location
of persons who know of any discoverable matter. For good
cause, the court may order discovery of any matter relevant
to the subject matter involved in the action. Relevant information
need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible
evidence. All discovery is subject to the limitations imposed
by Rule 26(b)(2)(C).
(2) Limitations on Frequency and Extent.
(A) When Permitted. By order, the court may alter the
limits in these rules on the number of depositions and interrogatories
or on the length of depositions under Rule 30.
By order or local rule, the court may also limit the number
of requests under Rule 36.
(B) Specific Limitations on Electronically Stored Information.
A party need not provide discovery of electronically
stored information from sources that the party identifies
as not reasonably accessible because of undue burden or
cost. On motion to compel discovery or for a protective
order, the party from whom discovery is sought must show
that the information is not reasonably accessible because
of undue burden or cost. If that showing is made, the court
may nonetheless order discovery from such sources if the
requesting party shows good cause, considering the limitations
of Rule 26(b)(2)(C). The court may specify conditions
for the discovery.
(C) When Required. On motion or on its own, the court
must limit the frequency or extent of discovery otherwise
allowed by these rules or by local rule if it determines
that:
(i) the discovery sought is unreasonably cumulative
or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or
less expensive;
(ii) the party seeking discovery has had ample opportunity
to obtain the information by discovery in the
action; or
37 Rule 26FEDERAL RULES OF CIVIL PROCEDURE
(iii) the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of
the case, the amount in controversy, the parties' resources,
the importance of the issues at stake in the
action, and the importance of the discovery in resolving
the issues.
(3) Trial Preparation: Materials.
(A) Documents and Tangible Things. Ordinarily, a party
may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for
another party or its representative (including the other
party's attorney, consultant, surety, indemnitor, insurer,
or agent). But, subject to Rule 26(b)(4), those materials
may be discovered if:
(i) they are otherwise discoverable under Rule
26(b)(1); and
(ii) the party shows that it has substantial need for
the materials to prepare its case and cannot, without
undue hardship, obtain their substantial equivalent by
other means.
(B) Protection Against Disclosure. If the court orders discovery
of those materials, it must protect against disclosure
of the mental impressions, conclusions, opinions, or
legal theories of a party's attorney or other representative
concerning the litigation.
(C) Previous Statement. Any party or other person may,
on request and without the required showing, obtain the
person's own previous statement about the action or its
subject matter. If the request is refused, the person may
move for a court order, and Rule 37(a)(5) applies to the
award of expenses. A previous statement is either:
(i) a written statement that the person has signed or
otherwise adopted or approved; or
(ii) a contemporaneous stenographic, mechanical,
electrical, or other recording -- or a transcription of it
-- that recites substantially verbatim the person's oral
statement.
(4) Trial Preparation: Experts.
(A) Expert Who May Testify. A party may depose any person
who has been identified as an expert whose opinions
may be presented at trial. If Rule 26(a)(2)(B) requires a report
from the expert, the deposition may be conducted
only after the report is provided.
(B) Expert Employed Only for Trial Preparation. Ordinarily,
a party may not, by interrogatories or deposition,
discover facts known or opinions held by an expert who
has been retained or specially employed by another party
in anticipation of litigation or to prepare for trial and who
is not expected to be called as a witness at trial. But a
party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under
which it is impracticable for the party to obtain facts
or opinions on the same subject by other means.
(C) Payment. Unless manifest injustice would result, the
court must require that the party seeking discovery:
38Rule 26 FEDERAL RULES OF CIVIL PROCEDURE
(i) pay the expert a reasonable fee for time spent in
responding to discovery under Rule 26(b)(4)(A) or (B);
and
(ii) for discovery under (B), also pay the other party
a fair portion of the fees and expenses it reasonably incurred
in obtaining the expert's facts and opinions.
(5) Claiming Privilege or Protecting Trial-Preparation Materials.
(A) Information Withheld. When a party withholds information
otherwise discoverable by claiming that the information
is privileged or subject to protection as trial-preparation
material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications,
or tangible things not produced or disclosed
-- and do so in a manner that, without revealing information
itself privileged or protected, will enable other
parties to assess the claim.
(B) Information Produced. If information produced in discovery
is subject to a claim of privilege or of protection as
trial-preparation material, the party making the claim
may notify any party that received the information of the
claim and the basis for it. After being notified, a party
must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose
the information until the claim is resolved; must take reasonable
steps to retrieve the information if the party disclosed
it before being notified; and may promptly present
the information to the court under seal for a determination
of the claim. The producing party must preserve the
information until the claim is resolved.
(c) PROTECTIVE ORDERS.
(1) In General. A party or any person from whom discovery
is sought may move for a protective order in the court where
the action is pending -- or as an alternative on matters relating
to a deposition, in the court for the district where the deposition
will be taken. The motion must include a certification
that the movant has in good faith conferred or attempted to
confer with other affected parties in an effort to resolve the
dispute without court action. The court may, for good cause,
issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including
one or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, for the
disclosure or discovery;
(C) prescribing a discovery method other than the one
selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting
the scope of disclosure or discovery to certain matters;
(E) designating the persons who may be present while
the discovery is conducted;
(F) requiring that a deposition be sealed and opened only
on court order;
(G) requiring that a trade secret or other confidential research,
development, or commercial information not be revealed
or be revealed only in a specified way; and
39 Rule 26FEDERAL RULES OF CIVIL PROCEDURE
(H) requiring that the parties simultaneously file specified
documents or information in sealed envelopes, to be
opened as the court directs.
(2) Ordering Discovery. If a motion for a protective order is
wholly or partly denied, the court may, on just terms, order
that any party or person provide or permit discovery.
(3) Awarding Expenses. Rule 37(a)(5) applies to the award of
expenses.
(d) TIMING AND SEQUENCE OF DISCOVERY.
(1) Timing. A party may not seek discovery from any source
before the parties have conferred as required by Rule 26(f), except
in a proceeding exempted from initial disclosure under
Rule 26(a)(1)(B), or when authorized by these rules, by stipulation,
or by court order.
(2) Sequence. Unless, on motion, the court orders otherwise
for the parties' and witnesses' convenience and in the interests
of justice:
(A) methods of discovery may be used in any sequence;
and
(B) discovery by one party does not require any other
party to delay its discovery.
(e) SUPPLEMENTING DISCLOSURES AND RESPONSES.
(1) In General. A party who has made a disclosure under Rule
26(a) -- or who has responded to an interrogatory, request for
production, or request for admission -- must supplement or
correct its disclosure or response:
(A) in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete
or incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties
during the discovery process or in writing; or
(B) as ordered by the court.
(2) Expert Witness. For an expert whose report must be disclosed
under Rule 26(a)(2)(B), the party's duty to supplement
extends both to information included in the report and to information
given during the expert's deposition. Any additions
or changes to this information must be disclosed by the time
the party's pretrial disclosures under Rule 26(a)(3) are due.
(f) CONFERENCE OF THE PARTIES; PLANNING FOR DISCOVERY.
(1) Conference Timing. Except in a proceeding exempted from
initial disclosure under Rule 26(a)(1)(B) or when the court orders
otherwise, the parties must confer as soon as practicable
-- and in any event at least 21 days before a scheduling conference
is to be held or a scheduling order is due under Rule
16(b).
(2) Conference Content; Parties' Responsibilities. In conferring,
the parties must consider the nature and basis of their claims
and defenses and the possibilities for promptly settling or resolving
the case; make or arrange for the disclosures required
by Rule 26(a)(1); discuss any issues about preserving discoverable
information; and develop a proposed discovery plan. The
attorneys of record and all unrepresented parties that have appeared
in the case are jointly responsible for arranging the
conference, for attempting in good faith to agree on the proposed
discovery plan, and for submitting to the court within
40Rule 26 FEDERAL RULES OF CIVIL PROCEDURE
14 days after the conference a written report outlining the
plan. The court may order the parties or attorneys to attend
the conference in person.
(3) Discovery Plan. A discovery plan must state the parties'
views and proposals on:
(A) what changes should be made in the timing, form, or
requirement for disclosures under Rule 26(a), including a
statement of when initial disclosures were made or will be
made;
(B) the subjects on which discovery may be needed, when
discovery should be completed, and whether discovery
should be conducted in phases or be limited to or focused
on particular issues;
(C) any issues about disclosure or discovery of electronically
stored information, including the form or forms in
which it should be produced;
(D) any issues about claims of privilege or of protection
as trial-preparation materials, including -- if the parties
agree on a procedure to assert these claims after production
-- whether to ask the court to include their agreement
in an order;
(E) what changes should be made in the limitations on
discovery imposed under these rules or by local rule, and
what other limitations should be imposed; and
(F) any other orders that the court should issue under
Rule 26(c) or under Rule 16(b) and (c).
(4) Expedited Schedule. If necessary to comply with its expedited
schedule for Rule 16(b) conferences, a court may by local
rule:
(A) require the parties' conference to occur less than 21
days before the scheduling conference is held or a scheduling
order is due under Rule 16(b); and
(B) require the written report outlining the discovery
plan to be filed less than 14 days after the parties' conference,
or excuse the parties from submitting a written
report and permit them to report orally on their discovery
plan at the Rule 16(b) conference.
(g) SIGNING DISCLOSURES AND DISCOVERY REQUESTS, RESPONSES,
AND OBJECTIONS.
(1) Signature Required; Effect of Signature. Every disclosure
under Rule 26(a)(1) or (a)(3) and every discovery request, response,
or objection must be signed by at least one attorney
of record in the attorney's own name -- or by the party personally,
if unrepresented -- and must state the signer's address,
e-mail address, and telephone number. By signing, an
attorney or party certifies that to the best of the person's
knowledge, information, and belief formed after a reasonable
inquiry:
(A) with respect to a disclosure, it is complete and correct
as of the time it is made; and
(B) with respect to a discovery request, response, or objection,
it is:
(i) consistent with these rules and warranted by existing
law or by a nonfrivolous argument for extending,
modifying, or reversing existing law, or for establishing
new law;
41 Rule 27FEDERAL RULES OF CIVIL PROCEDURE
(ii) not interposed for any improper purpose, such as
to harass, cause unnecessary delay, or needlessly increase
the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or
expensive, considering the needs of the case, prior discovery
in the case, the amount in controversy, and the
importance of the issues at stake in the action.
(2) Failure to Sign. Other parties have no duty to act on an
unsigned disclosure, request, response, or objection until it is
signed, and the court must strike it unless a signature is
promptly supplied after the omission is called to the attorney's
or party's attention.
(3) Sanction for Improper Certification. If a certification violates
this rule without substantial justification, the court, on
motion or on its own, must impose an appropriate sanction on
the signer, the party on whose behalf the signer was acting, or
both. The sanction may include an order to pay the reasonable
expenses, including attorney's fees, caused by the violation.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 30, 1970, eff. July 1, 1970;
Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 28, 1983, eff. Aug. 1, 1983; Mar.
2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000,
eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 27. Depositions to Perpetuate Testimony
(a) BEFORE AN ACTION IS FILED.
(1) Petition. A person who wants to perpetuate testimony
about any matter cognizable in a United States court may file
a verified petition in the district court for the district where
any expected adverse party resides. The petition must ask for
an order authorizing the petitioner to depose the named persons
in order to perpetuate their testimony. The petition must
be titled in the petitioner's name and must show:
(A) that the petitioner expects to be a party to an action
cognizable in a United States court but cannot presently
bring it or cause it to be brought;
(B) the subject matter of the expected action and the petitioner's
interest;
(C) the facts that the petitioner wants to establish by
the proposed testimony and the reasons to perpetuate it;
(D) the names or a description of the persons whom the
petitioner expects to be adverse parties and their addresses,
so far as known; and
(E) the name, address, and expected substance of the testimony
of each deponent.
(2) Notice and Service. At least 20 days before the hearing
date, the petitioner must serve each expected adverse party
with a copy of the petition and a notice stating the time and
place of the hearing. The notice may be served either inside or
outside the district or state in the manner provided in Rule 4.
If that service cannot be made with reasonable diligence on an
expected adverse party, the court may order service by publication
or otherwise. The court must appoint an attorney to
42Rule 28 FEDERAL RULES OF CIVIL PROCEDURE
represent persons not served in the manner provided in Rule
4 and to cross-examine the deponent if an unserved person is
not otherwise represented. If any expected adverse party is a
minor or is incompetent, Rule 17(c) applies.
(3) Order and Examination. If satisfied that perpetuating the
testimony may prevent a failure or delay of justice, the court
must issue an order that designates or describes the persons
whose depositions may be taken, specifies the subject matter
of the examinations, and states whether the depositions will
be taken orally or by written interrogatories. The depositions
may then be taken under these rules, and the court may issue
orders like those authorized by Rules 34 and 35. A reference in
these rules to the court where an action is pending means, for
purposes of this rule, the court where the petition for the deposition
was filed.
(4) Using the Deposition. A deposition to perpetuate testimony
may be used under Rule 32(a) in any later-filed districtcourt
action involving the same subject matter if the deposition
either was taken under these rules or, although not so
taken, would be admissible in evidence in the courts of the
state where it was taken.
(b) PENDING APPEAL.
(1) In General. The court where a judgment has been rendered
may, if an appeal has been taken or may still be taken, permit
a party to depose witnesses to perpetuate their testimony for
use in the event of further proceedings in that court.
(2) Motion. The party who wants to perpetuate testimony
may move for leave to take the depositions, on the same notice
and service as if the action were pending in the district
court. The motion must show:
(A) the name, address, and expected substance of the testimony
of each deponent; and
(B) the reasons for perpetuating the testimony.
(3) Court Order. If the court finds that perpetuating the testimony
may prevent a failure or delay of justice, the court may
permit the depositions to be taken and may issue orders like
those authorized by Rules 34 and 35. The depositions may be
taken and used as any other deposition taken in a pending district-court
action.
(c) PERPETUATION BY AN ACTION. This rule does not limit a
court's power to entertain an action to perpetuate testimony.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Mar. 1, 1971, eff. July 1, 1971; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 28. Persons Before Whom Depositions May Be Taken
(a) WITHIN THE UNITED STATES.
(1) In General. Within the United States or a territory or insular
possession subject to United States jurisdiction, a deposition
must be taken before:
(A) an officer authorized to administer oaths either by
federal law or by the law in the place of examination; or
(B) a person appointed by the court where the action is
pending to administer oaths and take testimony.
43 Rule 29FEDERAL RULES OF CIVIL PROCEDURE
(2) Definition of ``Officer.'' The term ``officer'' in Rules 30, 31,
and 32 includes a person appointed by the court under this rule
or designated by the parties under Rule 29(a).
(b) IN A FOREIGN COUNTRY.
(1) In General. A deposition may be taken in a foreign coun-
try:
(A) under an applicable treaty or convention;
(B) under a letter of request, whether or not captioned a
``letter rogatory'';
(C) on notice, before a person authorized to administer
oaths either by federal law or by the law in the place of examination;
or
(D) before a person commissioned by the court to administer
any necessary oath and take testimony.
(2) Issuing a Letter of Request or a Commission. A letter of request,
a commission, or both may be issued:
(A) on appropriate terms after an application and notice
of it; and
(B) without a showing that taking the deposition in another
manner is impracticable or inconvenient.
(3) Form of a Request, Notice, or Commission. When a letter of
request or any other device is used according to a treaty or
convention, it must be captioned in the form prescribed by
that treaty or convention. A letter of request may be addressed
``To the Appropriate Authority in [name of country].''
A deposition notice or a commission must designate by name
or descriptive title the person before whom the deposition is
to be taken.
(4) Letter of Request -- Admitting Evidence. Evidence obtained
in response to a letter of request need not be excluded merely
because it is not a verbatim transcript, because the testimony
was not taken under oath, or because of any similar departure
from the requirements for depositions taken within the United
States.
(c) DISQUALIFICATION. A deposition must not be taken before a
person who is any party's relative, employee, or attorney; who is
related to or employed by any party's attorney; or who is financially
interested in the action.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 1, 2007, eff. Dec. 1, 2007.)
Rule 29. Stipulations About Discovery Procedure
Unless the court orders otherwise, the parties may stipulate
that:
(a) a deposition may be taken before any person, at any time or
place, on any notice, and in the manner specified -- in which event
it may be used in the same way as any other deposition; and
(b) other procedures governing or limiting discovery be modified
-- but a stipulation extending the time for any form of discovery
must have court approval if it would interfere with the time set
for completing discovery, for hearing a motion, or for trial.
(As amended Mar. 30, 1970, eff. July 1, 1970; Apr. 22, 1993, eff. Dec.
1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.)
44Rule 30 FEDERAL RULES OF CIVIL PROCEDURE
Rule 30. Depositions by Oral Examination
(a) WHEN A DEPOSITION MAY BE TAKEN.
(1) Without Leave. A party may, by oral questions, depose
any person, including a party, without leave of court except as
provided in Rule 30(a)(2). The deponent's attendance may be
compelled by subpoena under Rule 45.
(2) With Leave. A party must obtain leave of court, and the
court must grant leave to the extent consistent with Rule
26(b)(2):
(A) if the parties have not stipulated to the deposition
and:
(i) the deposition would result in more than 10 depositions
being taken under this rule or Rule 31 by the
plaintiffs, or by the defendants, or by the third-party
defendants;
(ii) the deponent has already been deposed in the
case; or
(iii) the party seeks to take the deposition before the
time specified in Rule 26(d), unless the party certifies
in the notice, with supporting facts, that the deponent
is expected to leave the United States and be unavailable
for examination in this country after that time;
or
(B) if the deponent is confined in prison.
(b) NOTICE OF THE DEPOSITION; OTHER FORMAL REQUIREMENTS.
(1) Notice in General. A party who wants to depose a person
by oral questions must give reasonable written notice to every
other party. The notice must state the time and place of the
deposition and, if known, the deponent's name and address. If
the name is unknown, the notice must provide a general description
sufficient to identify the person or the particular
class or group to which the person belongs.
(2) Producing Documents. If a subpoena duces tecum is to be
served on the deponent, the materials designated for production,
as set out in the subpoena, must be listed in the notice
or in an attachment. The notice to a party deponent may be
accompanied by a request under Rule 34 to produce documents
and tangible things at the deposition.
(3) Method of Recording.
(A) Method Stated in the Notice. The party who notices the
deposition must state in the notice the method for recording
the testimony. Unless the court orders otherwise, testimony
may be recorded by audio, audiovisual, or stenographic
means. The noticing party bears the recording
costs. Any party may arrange to transcribe a deposition.
(B) Additional Method. With prior notice to the deponent
and other parties, any party may designate another method
for recording the testimony in addition to that specified
in the original notice. That party bears the expense of
the additional record or transcript unless the court orders
otherwise.
(4) By Remote Means. The parties may stipulate -- or the
court may on motion order -- that a deposition be taken by
telephone or other remote means. For the purpose of this rule
45 Rule 30FEDERAL RULES OF CIVIL PROCEDURE
and Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes
place where the deponent answers the questions.
(5) Officer's Duties.
(A) Before the Deposition. Unless the parties stipulate
otherwise, a deposition must be conducted before an officer
appointed or designated under Rule 28. The officer
must begin the deposition with an on-the-record statement
that includes:
(i) the officer's name and business address;
(ii) the date, time, and place of the deposition;
(iii) the deponent's name;
(iv) the officer's administration of the oath or affirmation
to the deponent; and
(v) the identity of all persons present.
(B) Conducting the Deposition; Avoiding Distortion. If the
deposition is recorded nonstenographically, the officer
must repeat the items in Rule 30(b)(5)(A)(i)­(iii) at the beginning
of each unit of the recording medium. The deponent's
and attorneys' appearance or demeanor must not be
distorted through recording techniques.
(C) After the Deposition. At the end of a deposition, the officer
must state on the record that the deposition is complete
and must set out any stipulations made by the attorneys
about custody of the transcript or recording and of
the exhibits, or about any other pertinent matters.
(6) Notice or Subpoena Directed to an Organization. In its notice
or subpoena, a party may name as the deponent a public
or private corporation, a partnership, an association, a governmental
agency, or other entity and must describe with reasonable
particularity the matters for examination. The named
organization must then designate one or more officers, directors,
or managing agents, or designate other persons who consent
to testify on its behalf; and it may set out the matters
on which each person designated will testify. A subpoena must
advise a nonparty organization of its duty to make this designation.
The persons designated must testify about information
known or reasonably available to the organization. This
paragraph (6) does not preclude a deposition by any other procedure
allowed by these rules.
(c) EXAMINATION AND CROSS-EXAMINATION; RECORD OF THE EXAMINATION;
OBJECTIONS; WRITTEN QUESTIONS.
(1) Examination and Cross-Examination. The examination and
cross-examination of a deponent proceed as they would at trial
under the Federal Rules of Evidence, except Rules 103 and 615.
After putting the deponent under oath or affirmation, the officer
must record the testimony by the method designated
under Rule 30(b)(3)(A). The testimony must be recorded by the
officer personally or by a person acting in the presence and
under the direction of the officer.
(2) Objections. An objection at the time of the examination
-- whether to evidence, to a party's conduct, to the officer's
qualifications, to the manner of taking the deposition, or to
any other aspect of the deposition -- must be noted on the
record, but the examination still proceeds; the testimony is
taken subject to any objection. An objection must be stated
46Rule 30 FEDERAL RULES OF CIVIL PROCEDURE
concisely in a nonargumentative and nonsuggestive manner. A
person may instruct a deponent not to answer only when necessary
to preserve a privilege, to enforce a limitation ordered
by the court, or to present a motion under Rule 30(d)(3).
(3) Participating Through Written Questions. Instead of participating
in the oral examination, a party may serve written
questions in a sealed envelope on the party noticing the deposition,
who must deliver them to the officer. The officer must
ask the deponent those questions and record the answers ver-
batim.
(d) DURATION; SANCTION; MOTION TO TERMINATE OR LIMIT.
(1) Duration. Unless otherwise stipulated or ordered by the
court, a deposition is limited to 1 day of 7 hours. The court
must allow additional time consistent with Rule 26(b)(2) if
needed to fairly examine the deponent or if the deponent, another
person, or any other circumstance impedes or delays the
examination.
(2) Sanction. The court may impose an appropriate sanction
-- including the reasonable expenses and attorney's fees incurred
by any party -- on a person who impedes, delays, or
frustrates the fair examination of the deponent.
(3) Motion to Terminate or Limit.
(A) Grounds. At any time during a deposition, the deponent
or a party may move to terminate or limit it on the
ground that it is being conducted in bad faith or in a manner
that unreasonably annoys, embarrasses, or oppresses
the deponent or party. The motion may be filed in the
court where the action is pending or the deposition is
being taken. If the objecting deponent or party so demands,
the deposition must be suspended for the time necessary
to obtain an order.
(B) Order. The court may order that the deposition be
terminated or may limit its scope and manner as provided
in Rule 26(c). If terminated, the deposition may be resumed
only by order of the court where the action is pend-
ing.
(C) Award of Expenses. Rule 37(a)(5) applies to the award
of expenses.
(e) REVIEW BY THE WITNESS; CHANGES.
(1) Review; Statement of Changes. On request by the deponent
or a party before the deposition is completed, the deponent
must be allowed 30 days after being notified by the officer that
the transcript or recording is available in which:
(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to sign a
statement listing the changes and the reasons for making
them.
(2) Changes Indicated in the Officer's Certificate. The officer
must note in the certificate prescribed by Rule 30(f)(1) whether
a review was requested and, if so, must attach any changes the
deponent makes during the 30-day period.
(f) CERTIFICATION AND DELIVERY; EXHIBITS; COPIES OF THE TRANSCRIPT
OR RECORDING; FILING.
(1) Certification and Delivery. The officer must certify in writing
that the witness was duly sworn and that the deposition
47 Rule 31FEDERAL RULES OF CIVIL PROCEDURE
accurately records the witness's testimony. The certificate
must accompany the record of the deposition. Unless the court
orders otherwise, the officer must seal the deposition in an envelope
or package bearing the title of the action and marked
``Deposition of [witness's name]'' and must promptly send it to
the attorney who arranged for the transcript or recording. The
attorney must store it under conditions that will protect it
against loss, destruction, tampering, or deterioration.
(2) Documents and Tangible Things.
(A) Originals and Copies. Documents and tangible things
produced for inspection during a deposition must, on a party's
request, be marked for identification and attached to
the deposition. Any party may inspect and copy them. But
if the person who produced them wants to keep the originals,
the person may:
(i) offer copies to be marked, attached to the deposition,
and then used as originals -- after giving all parties
a fair opportunity to verify the copies by comparing
them with the originals; or
(ii) give all parties a fair opportunity to inspect and
copy the originals after they are marked -- in which
event the originals may be used as if attached to the
deposition.
(B) Order Regarding the Originals. Any party may move
for an order that the originals be attached to the deposition
pending final disposition of the case.
(3) Copies of the Transcript or Recording. Unless otherwise
stipulated or ordered by the court, the officer must retain the
stenographic notes of a deposition taken stenographically or a
copy of the recording of a deposition taken by another method.
When paid reasonable charges, the officer must furnish a
copy of the transcript or recording to any party or the depo-
nent.
(4) Notice of Filing. A party who files the deposition must
promptly notify all other parties of the filing.
(g) FAILURE TO ATTEND A DEPOSITION OR SERVE A SUBPOENA; EXPENSES.
A party who, expecting a deposition to be taken, attends
in person or by an attorney may recover reasonable expenses for
attending, including attorney's fees, if the noticing party failed
to:
(1) attend and proceed with the deposition; or
(2) serve a subpoena on a nonparty deponent, who consequently
did not attend.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff. July
1, 1970; Mar. 1, 1971, eff. July 1, 1971; Nov. 20, 1972, eff. July 1, 1975;
Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987; Apr.
22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 30, 2007,
eff. Dec. 1, 2007.)
Rule 31. Depositions by Written Questions
(a) WHEN A DEPOSITION MAY BE TAKEN.
(1) Without Leave. A party may, by written questions, depose
any person, including a party, without leave of court except as
provided in Rule 31(a)(2). The deponent's attendance may be
compelled by subpoena under Rule 45.
48Rule 32 FEDERAL RULES OF CIVIL PROCEDURE
(2) With Leave. A party must obtain leave of court, and the
court must grant leave to the extent consistent with Rule
26(b)(2):
(A) if the parties have not stipulated to the deposition
and:
(i) the deposition would result in more than 10 depositions
being taken under this rule or Rule 30 by the
plaintiffs, or by the defendants, or by the third-party
defendants;
(ii) the deponent has already been deposed in the
case; or
(iii) the party seeks to take a deposition before the
time specified in Rule 26(d); or
(B) if the deponent is confined in prison.
(3) Service; Required Notice. A party who wants to depose a
person by written questions must serve them on every other
party, with a notice stating, if known, the deponent's name
and address. If the name is unknown, the notice must provide
a general description sufficient to identify the person or the
particular class or group to which the person belongs. The notice
must also state the name or descriptive title and the address
of the officer before whom the deposition will be taken.
(4) Questions Directed to an Organization. A public or private
corporation, a partnership, an association, or a governmental
agency may be deposed by written questions in accordance
with Rule 30(b)(6).
(5) Questions from Other Parties. Any questions to the deponent
from other parties must be served on all parties as follows:
cross-questions, within 14 days after being served with
the notice and direct questions; redirect questions, within 7
days after being served with cross-questions; and recross-questions,
within 7 days after being served with redirect questions.
The court may, for good cause, extend or shorten these times.
(b) DELIVERY TO THE OFFICER; OFFICER'S DUTIES. The party who
noticed the deposition must deliver to the officer a copy of all the
questions served and of the notice. The officer must promptly proceed
in the manner provided in Rule 30(c), (e), and (f) to:
(1) take the deponent's testimony in response to the ques-
tions;
(2) prepare and certify the deposition; and
(3) send it to the party, attaching a copy of the questions
and of the notice.
(c) NOTICE OF COMPLETION OR FILING.
(1) Completion. The party who noticed the deposition must
notify all other parties when it is completed.
(2) Filing. A party who files the deposition must promptly
notify all other parties of the filing.
(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 32. Using Depositions in Court Proceedings
(a) USING DEPOSITIONS.
(1) In General. At a hearing or trial, all or part of a deposition
may be used against a party on these conditions:
49 Rule 32FEDERAL RULES OF CIVIL PROCEDURE
(A) the party was present or represented at the taking of
the deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible under
the Federal Rules of Evidence if the deponent were present
and testifying; and
(C) the use is allowed by Rule 32(a)(2) through (8).
(2) Impeachment and Other Uses. Any party may use a deposition
to contradict or impeach the testimony given by the deponent
as a witness, or for any other purpose allowed by the
Federal Rules of Evidence.
(3) Deposition of Party, Agent, or Designee. An adverse party
may use for any purpose the deposition of a party or anyone
who, when deposed, was the party's officer, director, managing
agent, or designee under Rule 30(b)(6) or 31(a)(4).
(4) Unavailable Witness. A party may use for any purpose the
deposition of a witness, whether or not a party, if the court
finds:
(A) that the witness is dead;
(B) that the witness is more than 100 miles from the
place of hearing or trial or is outside the United States,
unless it appears that the witness's absence was procured
by the party offering the deposition;
(C) that the witness cannot attend or testify because of
age, illness, infirmity, or imprisonment;
(D) that the party offering the deposition could not procure
the witness's attendance by subpoena; or
(E) on motion and notice, that exceptional circumstances
make it desirable -- in the interest of justice and
with due regard to the importance of live testimony in
open court -- to permit the deposition to be used.
(5) Limitations on Use.
(A) Deposition Taken on Short Notice. A deposition must
not be used against a party who, having received less than
11 days' notice of the deposition, promptly moved for a
protective order under Rule 26(c)(1)(B) requesting that it
not be taken or be taken at a different time or place -- and
this motion was still pending when the deposition was
taken.
(B) Unavailable Deponent; Party Could Not Obtain an Attorney.
A deposition taken without leave of court under
the unavailability provision of Rule 30(a)(2)(A)(iii) must
not be used against a party who shows that, when served
with the notice, it could not, despite diligent efforts, obtain
an attorney to represent it at the deposition.
(6) Using Part of a Deposition. If a party offers in evidence
only part of a deposition, an adverse party may require the offeror
to introduce other parts that in fairness should be considered
with the part introduced, and any party may itself introduce
any other parts.
(7) Substituting a Party. Substituting a party under Rule 25
does not affect the right to use a deposition previously taken.
(8) Deposition Taken in an Earlier Action. A deposition lawfully
taken and, if required, filed in any federal- or state-court
action may be used in a later action involving the same subject
matter between the same parties, or their representatives
50Rule 32 FEDERAL RULES OF CIVIL PROCEDURE
or successors in interest, to the same extent as if taken in the
later action. A deposition previously taken may also be used
as allowed by the Federal Rules of Evidence.
(b) OBJECTIONS TO ADMISSIBILITY. Subject to Rules 28(b) and
32(d)(3), an objection may be made at a hearing or trial to the admission
of any deposition testimony that would be inadmissible if
the witness were present and testifying.
(c) FORM OF PRESENTATION. Unless the court orders otherwise, a
party must provide a transcript of any deposition testimony the
party offers, but may provide the court with the testimony in nontranscript
form as well. On any party's request, deposition testimony
offered in a jury trial for any purpose other than impeachment
must be presented in nontranscript form, if available, unless
the court for good cause orders otherwise.
(d) WAIVER OF OBJECTIONS.
(1) To the Notice. An objection to an error or irregularity in
a deposition notice is waived unless promptly served in writing
on the party giving the notice.
(2) To the Officer's Qualification. An objection based on disqualification
of the officer before whom a deposition is to be
taken is waived if not made:
(A) before the deposition begins; or
(B) promptly after the basis for disqualification becomes
known or, with reasonable diligence, could have been
known.
(3) To the Taking of the Deposition.
(A) Objection to Competence, Relevance, or Materiality. An
objection to a deponent's competence -- or to the competence,
relevance, or materiality of testimony -- is not
waived by a failure to make the objection before or during
the deposition, unless the ground for it might have been
corrected at that time.
(B) Objection to an Error or Irregularity. An objection to
an error or irregularity at an oral examination is waived
if:
(i) it relates to the manner of taking the deposition,
the form of a question or answer, the oath or affirmation,
a party's conduct, or other matters that might
have been corrected at that time; and
(ii) it is not timely made during the deposition.
(C) Objection to a Written Question. An objection to the
form of a written question under Rule 31 is waived if not
served in writing on the party submitting the question
within the time for serving responsive questions or, if the
question is a recross-question, within 5 days after being
served with it.
(4) To Completing and Returning the Deposition. An objection
to how the officer transcribed the testimony -- or prepared,
signed, certified, sealed, endorsed, sent, or otherwise dealt
with the deposition -- is waived unless a motion to suppress
is made promptly after the error or irregularity becomes
known or, with reasonable diligence, could have been known.
(As amended Mar. 30, 1970, eff. July 1, 1970; Nov. 20, 1972, eff. July
1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.)
51 Rule 33FEDERAL RULES OF CIVIL PROCEDURE
Rule 33. Interrogatories to Parties
(a) IN GENERAL.
(1) Number. Unless otherwise stipulated or ordered by the
court, a party may serve on any other party no more than 25
written interrogatories, including all discrete subparts. Leave
to serve additional interrogatories may be granted to the extent
consistent with Rule 26(b)(2).
(2) Scope. An interrogatory may relate to any matter that
may be inquired into under Rule 26(b). An interrogatory is not
objectionable merely because it asks for an opinion or contention
that relates to fact or the application of law to fact, but
the court may order that the interrogatory need not be answered
until designated discovery is complete, or until a pretrial
conference or some other time.
(b) ANSWERS AND OBJECTIONS.
(1) Responding Party. The interrogatories must be answered:
(A) by the party to whom they are directed; or
(B) if that party is a public or private corporation, a
partnership, an association, or a governmental agency, by
any officer or agent, who must furnish the information
available to the party.
(2) Time to Respond. The responding party must serve its answers
and any objections within 30 days after being served
with the interrogatories. A shorter or longer time may be stipulated
to under Rule 29 or be ordered by the court.
(3) Answering Each Interrogatory. Each interrogatory must,
to the extent it is not objected to, be answered separately and
fully in writing under oath.
(4) Objections. The grounds for objecting to an interrogatory
must be stated with specificity. Any ground not stated in a
timely objection is waived unless the court, for good cause, excuses
the failure.
(5) Signature. The person who makes the answers must sign
them, and the attorney who objects must sign any objections.
(c) USE. An answer to an interrogatory may be used to the extent
allowed by the Federal Rules of Evidence.
(d) OPTION TO PRODUCE BUSINESS RECORDS. If the answer to an
interrogatory may be determined by examining, auditing, compiling,
abstracting, or summarizing a party's business records (including
electronically stored information), and if the burden of deriving
or ascertaining the answer will be substantially the same
for either party, the responding party may answer by:
(1) specifying the records that must be reviewed, in sufficient
detail to enable the interrogating party to locate and
identify them as readily as the responding party could; and
(2) giving the interrogating party a reasonable opportunity
to examine and audit the records and to make copies, compilations,
abstracts, or summaries.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July
1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 22, 1993, eff. Dec. 1, 1993;
Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.)
52Rule 34 FEDERAL RULES OF CIVIL PROCEDURE
Rule 34. Producing Documents, Electronically Stored Information,
and Tangible Things, or Entering onto Land, for Inspection
and Other Purposes
(a) IN GENERAL. A party may serve on any other party a request
within the scope of Rule 26(b):
(1) to produce and permit the requesting party or its representative
to inspect, copy, test, or sample the following
items in the responding party's possession, custody, or con-
trol:
(A) any designated documents or electronically stored
information -- including writings, drawings, graphs,
charts, photographs, sound recordings, images, and other
data or data compilations -- stored in any medium from
which information can be obtained either directly or, if
necessary, after translation by the responding party into a
reasonably usable form; or
(B) any designated tangible things; or
(2) to permit entry onto designated land or other property
possessed or controlled by the responding party, so that the
requesting party may inspect, measure, survey, photograph,
test, or sample the property or any designated object or operation
on it.
(b) PROCEDURE.
(1) Contents of the Request. The request:
(A) must describe with reasonable particularity each
item or category of items to be inspected;
(B) must specify a reasonable time, place, and manner
for the inspection and for performing the related acts; and
(C) may specify the form or forms in which electronically
stored information is to be produced.
(2) Responses and Objections.
(A) Time to Respond. The party to whom the request is directed
must respond in writing within 30 days after being
served. A shorter or longer time may be stipulated to
under Rule 29 or be ordered by the court.
(B) Responding to Each Item. For each item or category,
the response must either state that inspection and related
activities will be permitted as requested or state an objection
to the request, including the reasons.
(C) Objections. An objection to part of a request must
specify the part and permit inspection of the rest.
(D) Responding to a Request for Production of Electronically
Stored Information. The response may state an objection to
a requested form for producing electronically stored information.
If the responding party objects to a requested
form -- or if no form was specified in the request -- the
party must state the form or forms it intends to use.
(E) Producing the Documents or Electronically Stored Information.
Unless otherwise stipulated or ordered by the
court, these procedures apply to producing documents or
electronically stored information:
(i) A party must produce documents as they are kept
in the usual course of business or must organize and
label them to correspond to the categories in the re-
quest;
53 Rule 35FEDERAL RULES OF CIVIL PROCEDURE
(ii) If a request does not specify a form for producing
electronically stored information, a party must
produce it in a form or forms in which it is ordinarily
maintained or in a reasonably usable form or forms;
and
(iii) A party need not produce the same electronically
stored information in more than one form.
(c) NONPARTIES. As provided in Rule 45, a nonparty may be compelled
to produce documents and tangible things or to permit an
inspection.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July
1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr.
12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 35. Physical and Mental Examinations
(a) ORDER FOR AN EXAMINATION.
(1) In General. The court where the action is pending may
order a party whose mental or physical condition -- including
blood group -- is in controversy to submit to a physical or
mental examination by a suitably licensed or certified examiner.
The court has the same authority to order a party to
produce for examination a person who is in its custody or
under its legal control.
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and on
notice to all parties and the person to be examined; and
(B) must specify the time, place, manner, conditions, and
scope of the examination, as well as the person or persons
who will perform it.
(b) EXAMINER'S REPORT.
(1) Request by the Party or Person Examined. The party who
moved for the examination must, on request, deliver to the requester
a copy of the examiner's report, together with like reports
of all earlier examinations of the same condition. The
request may be made by the party against whom the examination
order was issued or by the person examined.
(2) Contents. The examiner's report must be in writing and
must set out in detail the examiner's findings, including diagnoses,
conclusions, and the results of any tests.
(3) Request by the Moving Party. After delivering the reports,
the party who moved for the examination may request -- and
is entitled to receive -- from the party against whom the examination
order was issued like reports of all earlier or later
examinations of the same condition. But those reports need
not be delivered by the party with custody or control of the
person examined if the party shows that it could not obtain
them.
(4) Waiver of Privilege. By requesting and obtaining the examiner's
report, or by deposing the examiner, the party examined
waives any privilege it may have -- in that action or any other
action involving the same controversy -- concerning testimony
about all examinations of the same condition.
54Rule 36 FEDERAL RULES OF CIVIL PROCEDURE
(5) Failure to Deliver a Report. The court on motion may order
-- on just terms -- that a party deliver the report of an examination.
If the report is not provided, the court may exclude
the examiner's testimony at trial.
(6) Scope. This subdivision (b) applies also to an examination
made by the parties' agreement, unless the agreement states
otherwise. This subdivision does not preclude obtaining an examiner's
report or deposing an examiner under other rules.
(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug.
1, 1987; Nov. 18, 1988; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30, 2007, eff.
Dec. 1, 2007.)
Rule 36. Requests for Admission
(a) SCOPE AND PROCEDURE.
(1) Scope. A party may serve on any other party a written request
to admit, for purposes of the pending action only, the
truth of any matters within the scope of Rule 26(b)(1) relating
to:
(A) facts, the application of law to fact, or opinions
about either; and
(B) the genuineness of any described documents.
(2) Form; Copy of a Document. Each matter must be separately
stated. A request to admit the genuineness of a document
must be accompanied by a copy of the document unless
it is, or has been, otherwise furnished or made available for inspection
and copying.
(3) Time to Respond; Effect of Not Responding. A matter is admitted
unless, within 30 days after being served, the party to
whom the request is directed serves on the requesting party a
written answer or objection addressed to the matter and
signed by the party or its attorney. A shorter or longer time
for responding may be stipulated to under Rule 29 or be ordered
by the court.
(4) Answer. If a matter is not admitted, the answer must specifically
deny it or state in detail why the answering party
cannot truthfully admit or deny it. A denial must fairly respond
to the substance of the matter; and when good faith requires
that a party qualify an answer or deny only a part of
a matter, the answer must specify the part admitted and qualify
or deny the rest. The answering party may assert lack of
knowledge or information as a reason for failing to admit or
deny only if the party states that it has made reasonable inquiry
and that the information it knows or can readily obtain
is insufficient to enable it to admit or deny.
(5) Objections. The grounds for objecting to a request must be
stated. A party must not object solely on the ground that the
request presents a genuine issue for trial.
(6) Motion Regarding the Sufficiency of an Answer or Objection.
The requesting party may move to determine the sufficiency
of an answer or objection. Unless the court finds an objection
justified, it must order that an answer be served. On finding
that an answer does not comply with this rule, the court may
order either that the matter is admitted or that an amended
answer be served. The court may defer its final decision until
55 Rule 37FEDERAL RULES OF CIVIL PROCEDURE
a pretrial conference or a specified time before trial. Rule
37(a)(5) applies to an award of expenses.
(b) EFFECT OF AN ADMISSION; WITHDRAWING OR AMENDING IT. A
matter admitted under this rule is conclusively established unless
the court, on motion, permits the admission to be withdrawn or
amended. Subject to Rule 16(e), the court may permit withdrawal
or amendment if it would promote the presentation of the merits
of the action and if the court is not persuaded that it would prejudice
the requesting party in maintaining or defending the action
on the merits. An admission under this rule is not an admission
for any other purpose and cannot be used against the party in any
other proceeding.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July
1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993;
Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 37. Failure to Make Disclosures or to Cooperate in Discovery;
Sanctions
(a) MOTION FOR AN ORDER COMPELLING DISCLOSURE OR DISCOVERY.
(1) In General. On notice to other parties and all affected persons,
a party may move for an order compelling disclosure or
discovery. The motion must include a certification that the
movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or discovery
in an effort to obtain it without court action.
(2) Appropriate Court. A motion for an order to a party must
be made in the court where the action is pending. A motion for
an order to a nonparty must be made in the court where the
discovery is or will be taken.
(3) Specific Motions.
(A) To Compel Disclosure. If a party fails to make a disclosure
required by Rule 26(a), any other party may move to
compel disclosure and for appropriate sanctions.
(B) To Compel a Discovery Response. A party seeking discovery
may move for an order compelling an answer, designation,
production, or inspection. This motion may be
made if:
(i) a deponent fails to answer a question asked under
Rule 30 or 31;
(ii) a corporation or other entity fails to make a designation
under Rule 30(b)(6) or 31(a)(4);
(iii) a party fails to answer an interrogatory submitted
under Rule 33; or
(iv) a party fails to respond that inspection will be
permitted -- or fails to permit inspection -- as requested
under Rule 34.
(C) Related to a Deposition. When taking an oral deposition,
the party asking a question may complete or adjourn
the examination before moving for an order.
(4) Evasive or Incomplete Disclosure, Answer, or Response. For
purposes of this subdivision (a), an evasive or incomplete disclosure,
answer, or response must be treated as a failure to
disclose, answer, or respond.
56Rule 37 FEDERAL RULES OF CIVIL PROCEDURE
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is
Provided After Filing). If the motion is granted -- or if the
disclosure or requested discovery is provided after the motion
was filed -- the court must, after giving an opportunity
to be heard, require the party or deponent whose
conduct necessitated the motion, the party or attorney advising
that conduct, or both to pay the movant's reasonable
expenses incurred in making the motion, including attorney's
fees. But the court must not order this payment
if:
(i) the movant filed the motion before attempting in
good faith to obtain the disclosure or discovery without
court action;
(ii) the opposing party's nondisclosure, response, or
objection was substantially justified; or
(iii) other circumstances make an award of expenses
unjust.
(B) If the Motion Is Denied. If the motion is denied, the
court may issue any protective order authorized under
Rule 26(c) and must, after giving an opportunity to be
heard, require the movant, the attorney filing the motion,
or both to pay the party or deponent who opposed the motion
its reasonable expenses incurred in opposing the motion,
including attorney's fees. But the court must not
order this payment if the motion was substantially justified
or other circumstances make an award of expenses un-
just.
(C) If the Motion Is Granted in Part and Denied in Part. If
the motion is granted in part and denied in part, the court
may issue any protective order authorized under Rule 26(c)
and may, after giving an opportunity to be heard, apportion
the reasonable expenses for the motion.
(b) FAILURE TO COMPLY WITH A COURT ORDER.
(1) Sanctions in the District Where the Deposition Is Taken. If
the court where the discovery is taken orders a deponent to be
sworn or to answer a question and the deponent fails to obey,
the failure may be treated as contempt of court.
(2) Sanctions in the District Where the Action Is Pending.
(A) For Not Obeying a Discovery Order. If a party or a party's
officer, director, or managing agent -- or a witness
designated under Rule 30(b)(6) or 31(a)(4) -- fails to obey an
order to provide or permit discovery, including an order
under Rule 26(f), 35, or 37(a), the court where the action is
pending may issue further just orders. They may include
the following:
(i) directing that the matters embraced in the order
or other designated facts be taken as established for
purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting
or opposing designated claims or defenses, or from
introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is
obeyed;
57 Rule 37FEDERAL RULES OF CIVIL PROCEDURE
(v) dismissing the action or proceeding in whole or in
part;
(vi) rendering a default judgment against the disobedient
party; or
(vii) treating as contempt of court the failure to
obey any order except an order to submit to a physical
or mental examination.
(B) For Not Producing a Person for Examination. If a party
fails to comply with an order under Rule 35(a) requiring it
to produce another person for examination, the court may
issue any of the orders listed in Rule 37(b)(2)(A)(i)­(vi), unless
the disobedient party shows that it cannot produce
the other person.
(C) Payment of Expenses. Instead of or in addition to the
orders above, the court must order the disobedient party,
the attorney advising that party, or both to pay the reasonable
expenses, including attorney's fees, caused by the
failure, unless the failure was substantially justified or
other circumstances make an award of expenses unjust.
(c) FAILURE TO DISCLOSE, TO SUPPLEMENT AN EARLIER RESPONSE,
OR TO ADMIT.
(1) Failure to Disclose or Supplement. If a party fails to provide
information or identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless. In
addition to or instead of this sanction, the court, on motion
and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including
attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including
any of the orders listed in Rule 37(b)(2)(A)(i)­(vi).
(2) Failure to Admit. If a party fails to admit what is requested
under Rule 36 and if the requesting party later proves
a document to be genuine or the matter true, the requesting
party may move that the party who failed to admit pay the
reasonable expenses, including attorney's fees, incurred in
making that proof. The court must so order unless:
(A) the request was held objectionable under Rule 36(a);
(B) the admission sought was of no substantial impor-
tance;
(C) the party failing to admit had a reasonable ground to
believe that it might prevail on the matter; or
(D) there was other good reason for the failure to admit.
(d) PARTY'S FAILURE TO ATTEND ITS OWN DEPOSITION, SERVE ANSWERS
TO INTERROGATORIES, OR RESPOND TO A REQUEST FOR INSPEC-
TION.
(1) In General.
(A) Motion; Grounds for Sanctions. The court where the
action is pending may, on motion, order sanctions if:
(i) a party or a party's officer, director, or managing
agent -- or a person designated under Rule 30(b)(6) or
31(a)(4) -- fails, after being served with proper notice,
to appear for that person's deposition; or
58Rule 38 FEDERAL RULES OF CIVIL PROCEDURE
(ii) a party, after being properly served with interrogatories
under Rule 33 or a request for inspection
under Rule 34, fails to serve its answers, objections, or
written response.
(B) Certification. A motion for sanctions for failing to answer
or respond must include a certification that the movant
has in good faith conferred or attempted to confer with
the party failing to act in an effort to obtain the answer
or response without court action.
(2) Unacceptable Excuse for Failing to Act. A failure described
in Rule 37(d)(1)(A) is not excused on the ground that the discovery
sought was objectionable, unless the party failing to
act has a pending motion for a protective order under Rule
26(c).
(3) Types of Sanctions. Sanctions may include any of the orders
listed in Rule 37(b)(2)(A)(i)­(vi). Instead of or in addition
to these sanctions, the court must require the party failing to
act, the attorney advising that party, or both to pay the reasonable
expenses, including attorney's fees, caused by the failure,
unless the failure was substantially justified or other circumstances
make an award of expenses unjust.
(e) FAILURE TO PROVIDE ELECTRONICALLY STORED INFORMATION.
Absent exceptional circumstances, a court may not impose sanctions
under these rules on a party for failing to provide electronically
stored information lost as a result of the routine, good-faith
operation of an electronic information system.
(f) FAILURE TO PARTICIPATE IN FRAMING A DISCOVERY PLAN. If a
party or its attorney fails to participate in good faith in developing
and submitting a proposed discovery plan as required by Rule
26(f), the court may, after giving an opportunity to be heard, require
that party or attorney to pay to any other party the reasonable
expenses, including attorney's fees, caused by the failure.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July
1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Oct. 21, 1980, eff. Oct. 1, 1981;
Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17,
2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007,
eff. Dec. 1, 2007.)
TITLE VI. TRIALS
Rule 38. Right to a Jury Trial; Demand
(a) RIGHT PRESERVED. The right of trial by jury as declared by
the Seventh Amendment to the Constitution -- or as provided by
a federal statute -- is preserved to the parties inviolate.
(b) DEMAND. On any issue triable of right by a jury, a party may
demand a jury trial by:
(1) serving the other parties with a written demand -- which
may be included in a pleading -- no later than 10 days after
the last pleading directed to the issue is served; and
(2) filing the demand in accordance with Rule 5(d).
(c) SPECIFYING ISSUES. In its demand, a party may specify the issues
that it wishes to have tried by a jury; otherwise, it is considered
to have demanded a jury trial on all the issues so triable. If
the party has demanded a jury trial on only some issues, any
59 Rule 41FEDERAL RULES OF CIVIL PROCEDURE
other party may -- within 10 days after being served with the demand
or within a shorter time ordered by the court -- serve a demand
for a jury trial on any other or all factual issues triable by
jury.
(d) WAIVER; WITHDRAWAL. A party waives a jury trial unless its
demand is properly served and filed. A proper demand may be
withdrawn only if the parties consent.
(e) ADMIRALTY AND MARITIME CLAIMS. These rules do not create
a right to a jury trial on issues in a claim that is an admiralty
or maritime claim under Rule 9(h).
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 39. Trial by Jury or by the Court
(a) WHEN A DEMAND IS MADE. When a jury trial has been demanded
under Rule 38, the action must be designated on the docket
as a jury action. The trial on all issues so demanded must be
by jury unless:
(1) the parties or their attorneys file a stipulation to a
nonjury trial or so stipulate on the record; or
(2) the court, on motion or on its own, finds that on some or
all of those issues there is no federal right to a jury trial.
(b) WHEN NO DEMAND IS MADE. Issues on which a jury trial is not
properly demanded are to be tried by the court. But the court
may, on motion, order a jury trial on any issue for which a jury
might have been demanded.
(c) ADVISORY JURY; JURY TRIAL BY CONSENT. In an action not triable
of right by a jury, the court, on motion or on its own:
(1) may try any issue with an advisory jury; or
(2) may, with the parties' consent, try any issue by a jury
whose verdict has the same effect as if a jury trial had been
a matter of right, unless the action is against the United
States and a federal statute provides for a nonjury trial.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 40. Scheduling Cases for Trial
Each court must provide by rule for scheduling trials. The court
must give priority to actions entitled to priority by a federal stat-
ute.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 41. Dismissal of Actions
(a) VOLUNTARY DISMISSAL.
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c),
23.2, and 66 and any applicable federal statute, the plaintiff
may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party
serves either an answer or a motion for summary judgment;
or
(ii) a stipulation of dismissal signed by all parties
who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise,
the dismissal is without prejudice. But if the plaintiff
previously dismissed any federal- or state-court action
60Rule 42 FEDERAL RULES OF CIVIL PROCEDURE
based on or including the same claim, a notice of dismissal
operates as an adjudication on the merits.
(2) By Court Order; Effect. Except as provided in Rule 41(a)(1),
an action may be dismissed at the plaintiff's request only by
court order, on terms that the court considers proper. If a defendant
has pleaded a counterclaim before being served with
the plaintiff's motion to dismiss, the action may be dismissed
over the defendant's objection only if the counterclaim can remain
pending for independent adjudication. Unless the order
states otherwise, a dismissal under this paragraph (2) is without
prejudice.
(b) INVOLUNTARY DISMISSAL; EFFECT. If the plaintiff fails to prosecute
or to comply with these rules or a court order, a defendant
may move to dismiss the action or any claim against it. Unless
the dismissal order states otherwise, a dismissal under this subdivision
(b) and any dismissal not under this rule -- except one for
lack of jurisdiction, improper venue, or failure to join a party
under Rule 19 -- operates as an adjudication on the merits.
(c) DISMISSING A COUNTERCLAIM, CROSSCLAIM, OR THIRD-PARTY
CLAIM. This rule applies to a dismissal of any counterclaim,
crossclaim, or third-party claim. A claimant's voluntary dismissal
under Rule 41(a)(1)(A)(i) must be made:
(1) before a responsive pleading is served; or
(2) if there is no responsive pleading, before evidence is introduced
at a hearing or trial.
(d) COSTS OF A PREVIOUSLY DISMISSED ACTION. If a plaintiff who
previously dismissed an action in any court files an action based
on or including the same claim against the same defendant, the
court:
(1) may order the plaintiff to pay all or part of the costs of
that previous action; and
(2) may stay the proceedings until the plaintiff has com-
plied.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968;
Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30,
2007, eff. Dec. 1, 2007.)
Rule 42. Consolidation; Separate Trials
(a) CONSOLIDATION. If actions before the court involve a common
question of law or fact, the court may:
(1) join for hearing or trial any or all matters at issue in the
actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.
(b) SEPARATE TRIALS. For convenience, to avoid prejudice, or to
expedite and economize, the court may order a separate trial of
one or more separate issues, claims, crossclaims, counterclaims,
or third-party claims. When ordering a separate trial, the court
must preserve any federal right to a jury trial.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 2007, eff. Dec.
1, 2007.)
61 Rule 44FEDERAL RULES OF CIVIL PROCEDURE
Rule 43. Taking Testimony
(a) IN OPEN COURT. At trial, the witnesses' testimony must be
taken in open court unless a federal statute, the Federal Rules of
Evidence, these rules, or other rules adopted by the Supreme
Court provide otherwise. For good cause in compelling circumstances
and with appropriate safeguards, the court may permit
testimony in open court by contemporaneous transmission from a
different location.
(b) AFFIRMATION INSTEAD OF AN OATH. When these rules require
an oath, a solemn affirmation suffices.
(c) EVIDENCE ON A MOTION. When a motion relies on facts outside
the record, the court may hear the matter on affidavits or may
hear it wholly or partly on oral testimony or on depositions.
(d) INTERPRETER. The court may appoint an interpreter of its
choosing; fix reasonable compensation to be paid from funds provided
by law or by one or more parties; and tax the compensation
as costs.
(As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 20, 1972, and Dec.
18, 1972, eff. July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 23, 1996,
eff. Dec. 1, 1996; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 44. Proving an Official Record
(a) MEANS OF PROVING.
(1) Domestic Record. Each of the following evidences an official
record -- or an entry in it -- that is otherwise admissible
and is kept within the United States, any state, district, or
commonwealth, or any territory subject to the administrative
or judicial jurisdiction of the United States:
(A) an official publication of the record; or
(B) a copy attested by the officer with legal custody of
the record -- or by the officer's deputy -- and accompanied
by a certificate that the officer has custody. The certificate
must be made under seal:
(i) by a judge of a court of record in the district or
political subdivision where the record is kept; or
(ii) by any public officer with a seal of office and
with official duties in the district or political subdivision
where the record is kept.
(2) Foreign Record.
(A) In General. Each of the following evidences a foreign
official record -- or an entry in it -- that is otherwise ad-
missible:
(i) an official publication of the record; or
(ii) the record -- or a copy -- that is attested by an
authorized person and is accompanied either by a final
certification of genuineness or by a certification under
a treaty or convention to which the United States and
the country where the record is located are parties.
(B) Final Certification of Genuineness. A final certification
must certify the genuineness of the signature and official
position of the attester or of any foreign official whose
certificate of genuineness relates to the attestation or is
in a chain of certificates of genuineness relating to the attestation.
A final certification may be made by a secretary
62Rule 44.1 FEDERAL RULES OF CIVIL PROCEDURE
of a United States embassy or legation; by a consul general,
vice consul, or consular agent of the United States;
or by a diplomatic or consular official of the foreign country
assigned or accredited to the United States.
(C) Other Means of Proof. If all parties have had a reasonable
opportunity to investigate a foreign record's authenticity
and accuracy, the court may, for good cause, either:
(i) admit an attested copy without final certification;
or
(ii) permit the record to be evidenced by an attested
summary with or without a final certification.
(b) LACK OF A RECORD. A written statement that a diligent
search of designated records revealed no record or entry of a specified
tenor is admissible as evidence that the records contain no
such record or entry. For domestic records, the statement must be
authenticated under Rule 44(a)(1). For foreign records, the statement
must comply with (a)(2)(C)(ii).
(c) OTHER PROOF. A party may prove an official record -- or an
entry or lack of an entry in it -- by any other method authorized
by law.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 44.1. Determining Foreign Law
A party who intends to raise an issue about a foreign country's
law must give notice by a pleading or other writing. In determining
foreign law, the court 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
must be treated as a ruling on a question of law.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Nov. 20, 1972, eff.
July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 45. Subpoena
(a) IN GENERAL.
(1) Form and Contents.
(A) Requirements -- In General. Every subpoena must:
(i) state the court from which it issued;
(ii) state the title of the action, the court in which
it is pending, and its civil-action number;
(iii) command each person to whom it is directed to
do the following at a specified time and place: attend
and testify; produce designated documents, electronically
stored information, or tangible things in that
person's possession, custody, or control; or permit the
inspection of premises; and
(iv) set out the text of Rule 45(c) and (d).
(B) Command to Attend a Deposition -- Notice of the Recording
Method. A subpoena commanding attendance at a deposition
must state the method for recording the testimony.
(C) Combining or Separating a Command to Produce or to
Permit Inspection; Specifying the Form for Electronically
Stored Information. A command to produce documents,
63 Rule 45FEDERAL RULES OF CIVIL PROCEDURE
electronically stored information, or tangible things or to
permit the inspection of premises may be included in a
subpoena commanding attendance at a deposition, hearing,
or trial, or may be set out in a separate subpoena. A
subpoena may specify the form or forms in which electronically
stored information is to be produced.
(D) Command to Produce; Included Obligations. A command
in a subpoena to produce documents, electronically
stored information, or tangible things requires the responding
party to permit inspection, copying, testing, or
sampling of the materials.
(2) Issued from Which Court. A subpoena must issue as fol-
lows:
(A) for attendance at a hearing or trial, from the court
for the district where the hearing or trial is to be held;
(B) for attendance at a deposition, from the court for the
district where the deposition is to be taken; and
(C) for production or inspection, if separate from a subpoena
commanding a person's attendance, from the court
for the district where the production or inspection is to be
made.
(3) Issued by Whom. The clerk must issue a subpoena, signed
but otherwise in blank, to a party who requests it. That party
must complete it before service. An attorney also may issue
and sign a subpoena as an officer of:
(A) a court in which the attorney is authorized to practice;
or
(B) a court for a district where a deposition is to be
taken or production is to be made, if the attorney is authorized
to practice in the court where the action is pend-
ing.
(b) SERVICE.
(1) By Whom; Tendering Fees; Serving a Copy of Certain Subpoenas.
Any person who is at least 18 years old and not a party
may serve a subpoena. Serving a subpoena requires delivering
a copy to the named person and, if the subpoena requires that
person's attendance, tendering the fees for 1 day's attendance
and the mileage allowed by law. Fees and mileage need not be
tendered when the subpoena issues on behalf of the United
States or any of its officers or agencies. If the subpoena commands
the production of documents, electronically stored information,
or tangible things or the inspection of premises before
trial, then before it is served, a notice must be served on
each party.
(2) Service in the United States. Subject to Rule 45(c)(3)(A)(ii),
a subpoena may be served at any place:
(A) within the district of the issuing court;
(B) outside that district but within 100 miles of the place
specified for the deposition, hearing, trial, production, or
inspection;
(C) within the state of the issuing court if a state statute
or court rule allows service at that place of a subpoena issued
by a state court of general jurisdiction sitting in the
place specified for the deposition, hearing, trial, production,
or inspection; or
64Rule 45 FEDERAL RULES OF CIVIL PROCEDURE
(D) that the court authorizes on motion and for good
cause, if a federal statute so provides.
(3) Service in a Foreign Country. 28 U.S.C. § 1783 governs issuing
and serving a subpoena directed to a United States national
or resident who is in a foreign country.
(4) Proof of Service. Proving service, when necessary, requires
filing with the issuing court a statement showing the date and
manner of service and the names of the persons served. The
statement must be certified by the server.
(c) PROTECTING A PERSON SUBJECT TO A SUBPOENA.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or
attorney responsible for issuing and serving a subpoena must
take reasonable steps to avoid imposing undue burden or expense
on a person subject to the subpoena. The issuing court
must enforce this duty and impose an appropriate sanction --
which may include lost earnings and reasonable attorney's
fees -- on a party or attorney who fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to
produce documents, electronically stored information, or
tangible things, or to permit the inspection of premises,
need not appear in person at the place of production or inspection
unless also commanded to appear for a deposition,
hearing, or trial.
(B) Objections. A person commanded to produce documents
or tangible things or to permit inspection may
serve on the party or attorney designated in the subpoena
a written objection to inspecting, copying, testing or sampling
any or all of the materials or to inspecting the premises
-- or to producing electronically stored information in
the form or forms requested. The objection must be served
before the earlier of the time specified for compliance or
14 days after the subpoena is served. If an objection is
made, the following rules apply:
(i) At any time, on notice to the commanded person,
the serving party may move the issuing court for an
order compelling production or inspection.
(ii) These acts may be required only as directed in
the order, and the order must protect a person who is
neither a party nor a party's officer from significant
expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court
must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a
party's officer to travel more than 100 miles from
where that person resides, is employed, or regularly
transacts business in person -- except that, subject to
Rule 45(c)(3)(B)(iii), the person may be commanded to
attend a trial by traveling from any such place within
the state where the trial is held;
(iii) requires disclosure of privileged or other protected
matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
65 Rule 45FEDERAL RULES OF CIVIL PROCEDURE
(B) When Permitted. To protect a person subject to or affected
by a subpoena, the issuing court may, on motion,
quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information;
(ii) disclosing an unretained expert's opinion or information
that does not describe specific occurrences
in dispute and results from the expert's study that was
not requested by a party; or
(iii) a person who is neither a party nor a party's officer
to incur substantial expense to travel more than
100 miles to attend trial.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(c)(3)(B), the court may, instead
of quashing or modifying a subpoena, order appearance
or production under specified conditions if the serving
party:
(i) shows a substantial need for the testimony or material
that cannot be otherwise met without undue
hardship; and
(ii) ensures that the subpoenaed person will be reasonably
compensated.
(d) DUTIES IN RESPONDING TO A SUBPOENA.
(1) Producing Documents or Electronically Stored Information.
These procedures apply to producing documents or electronically
stored information:
(A) Documents. A person responding to a subpoena to
produce documents must produce them as they are kept in
the ordinary course of business or must organize and label
them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information
Not Specified. If a subpoena does not specify a form for producing
electronically stored information, the person responding
must produce it in a form or forms in which it is
ordinarily maintained or in a reasonably usable form or
forms.
(C) Electronically Stored Information Produced in Only One
Form. The person responding need not produce the same
electronically stored information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically
stored information from sources that the person
identifies as not reasonably accessible because of undue
burden or cost. On motion to compel discovery or for a
protective order, the person responding must show that
the information is not reasonably accessible because of
undue burden or cost. If that showing is made, the court
may nonetheless order discovery from such sources if the
requesting party shows good cause, considering the limitations
of Rule 26(b)(2)(C). The court may specify conditions
for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed
information under a claim that it is privileged or
subject to protection as trial-preparation material must:
66Rule 46 FEDERAL RULES OF CIVIL PROCEDURE
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents,
communications, or tangible things in a manner that,
without revealing information itself privileged or protected,
will enable the parties to assess the claim.
(B) Information Produced. If information produced in response
to a subpoena is subject to a claim of privilege or
of protection as trial-preparation material, the person
making the claim may notify any party that received the
information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy
the specified information and any copies it has; must
not use or disclose the information until the claim is resolved;
must take reasonable steps to retrieve the information
if the party disclosed it before being notified; and may
promptly present the information to the court under seal
for a determination of the claim. The person who produced
the information must preserve the information until the
claim is resolved.
(e) CONTEMPT. The issuing court may hold in contempt a person
who, having been served, fails without adequate excuse to obey
the subpoena. A nonparty's failure to obey must be excused if the
subpoena purports to require the nonparty to attend or produce at
a place outside the limits of Rule 45(c)(3)(A)(ii).
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980;
Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr.
30, 1991, eff. Dec. 1, 1991; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 12, 2006,
eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 46. Objecting to a Ruling or Order
A formal exception to a ruling or order is unnecessary. When the
ruling or order is requested or made, a party need only state the
action that it wants the court to take or objects to, along with
the grounds for the request or objection. Failing to object does
not prejudice a party who had no opportunity to do so when the
ruling or order was made.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 47. Selecting Jurors
(a) EXAMINING JURORS. The court may permit the parties or
their attorneys to examine prospective jurors or may itself do so.
If the court examines the jurors, it must permit the parties or
their attorneys to make any further inquiry it considers proper,
or must itself ask any of their additional questions it considers
proper.
(b) PEREMPTORY CHALLENGES. The court must allow the number
of peremptory challenges provided by 28 U.S.C. § 1870.
(c) EXCUSING A JUROR. During trial or deliberation, the court
may excuse a juror for good cause.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1991, eff. Dec.
1, 1991; Apr. 30, 2007, eff. Dec. 1, 2007.)
67 Rule 49FEDERAL RULES OF CIVIL PROCEDURE
Rule 48. Number of Jurors; Verdict
A jury must initially have at least 6 and no more than 12 members,
and each juror must participate in the verdict unless excused
under Rule 47(c). Unless the parties stipulate otherwise, the verdict
must be unanimous and be returned by a jury of at least 6
members.
(As amended Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 49. Special Verdict; General Verdict and Questions
(a) SPECIAL VERDICT.
(1) In General. The court may require a jury to return only
a special verdict in the form of a special written finding on
each issue of fact. The court may do so by:
(A) submitting written questions susceptible of a categorical
or other brief answer;
(B) submitting written forms of the special findings that
might properly be made under the pleadings and evidence;
or
(C) using any other method that the court considers ap-
propriate.
(2) Instructions. The court must give the instructions and explanations
necessary to enable the jury to make its findings
on each submitted issue.
(3) Issues Not Submitted. A party waives the right to a jury
trial on any issue of fact raised by the pleadings or evidence
but not submitted to the jury unless, before the jury retires,
the party demands its submission to the jury. If the party does
not demand submission, the court may make a finding on the
issue. If the court makes no finding, it is considered to have
made a finding consistent with its judgment on the special
verdict.
(b) GENERAL VERDICT WITH ANSWERS TO WRITTEN QUESTIONS.
(1) In General. The court may submit to the jury forms for
a general verdict, together with written questions on one or
more issues of fact that the jury must decide. The court must
give the instructions and explanations necessary to enable the
jury to render a general verdict and answer the questions in
writing, and must direct the jury to do both.
(2) Verdict and Answers Consistent. When the general verdict
and the answers are consistent, the court must approve, for
entry under Rule 58, an appropriate judgment on the verdict
and answers.
(3) Answers Inconsistent with the Verdict. When the answers
are consistent with each other but one or more is inconsistent
with the general verdict, the court may:
(A) approve, for entry under Rule 58, an appropriate
judgment according to the answers, notwithstanding the
general verdict;
(B) direct the jury to further consider its answers and
verdict; or
(C) order a new trial.
(4) Answers Inconsistent with Each Other and the Verdict. When
the answers are inconsistent with each other and one or more
68Rule 50 FEDERAL RULES OF CIVIL PROCEDURE
is also inconsistent with the general verdict, judgment must
not be entered; instead, the court must direct the jury to further
consider its answers and verdict, or must order a new
trial.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion
for a New Trial; Conditional Ruling
(a) JUDGMENT AS A MATTER OF LAW.
(1) In General. If a party has been fully heard on an issue during
a jury trial and the court finds that a reasonable jury
would not have a legally sufficient evidentiary basis to find
for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law
against the party on a claim or defense that, under the
controlling law, can be maintained or defeated only with
a favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be
made at any time before the case is submitted to the jury. The
motion must specify the judgment sought and the law and
facts that entitle the movant to the judgment.
(b) RENEWING THE MOTION AFTER TRIAL; ALTERNATIVE MOTION
FOR A NEW TRIAL. If the court does not grant a motion for judgment
as a matter of law made under Rule 50(a), the court is considered
to have submitted the action to the jury subject to the
court's later deciding the legal questions raised by the motion. No
later than 10 days after the entry of judgment -- or if the motion
addresses a jury issue not decided by a verdict, no later than 10
days after the jury was discharged -- the movant may file a renewed
motion for judgment as a matter of law and may include an
alternative or joint request for a new trial under Rule 59. In ruling
on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a ver-
dict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
(c) GRANTING THE RENEWED MOTION; CONDITIONAL RULING ON A
MOTION FOR A NEW TRIAL.
(1) In General. If the court grants a renewed motion for judgment
as a matter of law, it must also conditionally rule on
any motion for a new trial by determining whether a new trial
should be granted if the judgment is later vacated or reversed.
The court must state the grounds for conditionally granting
or denying the motion for a new trial.
(2) Effect of a Conditional Ruling. Conditionally granting the
motion for a new trial does not affect the judgment's finality;
if the judgment is reversed, the new trial must proceed unless
the appellate court orders otherwise. If the motion for a new
trial is conditionally denied, the appellee may assert error in
that denial; if the judgment is reversed, the case must proceed
as the appellate court orders.
(d) TIME FOR A LOSING PARTY'S NEW-TRIAL MOTION. Any motion
for a new trial under Rule 59 by a party against whom judgment
69 Rule 51FEDERAL RULES OF CIVIL PROCEDURE
as a matter of law is rendered must be filed no later than 10 days
after the entry of the judgment.
(e) DENYING THE MOTION FOR JUDGMENT AS A MATTER OF LAW;
REVERSAL ON APPEAL. If the court denies the motion for judgment
as a matter of law, the prevailing party may, as appellee, assert
grounds entitling it to a new trial should the appellate court conclude
that the trial court erred in denying the motion. If the appellate
court reverses the judgment, it may order a new trial, direct
the trial court to determine whether a new trial should be
granted, or direct the entry of judgment.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993;
Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 12, 2006, eff. Dec. 1, 2006; Apr.
30, 2007, eff. Dec. 1, 2007.)
Rule 51. Instructions to the Jury; Objections; Preserving a Claim
of Error
(a) REQUESTS.
(1) Before or at the Close of the Evidence. At the close of the
evidence or at any earlier reasonable time that the court orders,
a party may file and furnish to every other party written
requests for the jury instructions it wants the court to give.
(2) After the Close of the Evidence. After the close of the evidence,
a party may:
(A) file requests for instructions on issues that could not
reasonably have been anticipated by an earlier time that
the court set for requests; and
(B) with the court's permission, file untimely requests
for instructions on any issue.
(b) INSTRUCTIONS. The court:
(1) must inform the parties of its proposed instructions and
proposed action on the requests before instructing the jury
and before final jury arguments;
(2) must give the parties an opportunity to object on the
record and out of the jury's hearing before the instructions
and arguments are delivered; and
(3) may instruct the jury at any time before the jury is dis-
charged.
(c) OBJECTIONS.
(1) How to Make. A party who objects to an instruction or the
failure to give an instruction must do so on the record, stating
distinctly the matter objected to and the grounds for the ob-
jection.
(2) When to Make. An objection is timely if:
(A) a party objects at the opportunity provided under
Rule 51(b)(2); or
(B) a party was not informed of an instruction or action
on a request before that opportunity to object, and the
party objects promptly after learning that the instruction
or request will be, or has been, given or refused.
(d) ASSIGNING ERROR; PLAIN ERROR.
(1) Assigning Error. A party may assign as error:
(A) an error in an instruction actually given, if that
party properly objected; or
70Rule 52 FEDERAL RULES OF CIVIL PROCEDURE
(B) a failure to give an instruction, if that party properly
requested it and -- unless the court rejected the request in
a definitive ruling on the record -- also properly objected.
(2) Plain Error. A court may consider a plain error in the instructions
that has not been preserved as required by Rule
51(d)(1) if the error affects substantial rights.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Mar. 27, 2003, eff. Dec.
1, 2003; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 52. Findings and Conclusions by the Court; Judgment on Partial
Findings
(a) FINDINGS AND CONCLUSIONS.
(1) In General. In an action tried on the facts without a jury
or with an advisory jury, the court must find the facts specially
and state its conclusions of law separately. The findings
and conclusions may be stated on the record after the close of
the evidence or may appear in an opinion or a memorandum
of decision filed by the court. Judgment must be entered under
Rule 58.
(2) For an Interlocutory Injunction. In granting or refusing an
interlocutory injunction, the court must similarly state the
findings and conclusions that support its action.
(3) For a Motion. The court is not required to state findings
or conclusions when ruling on a motion under Rule 12 or 56 or,
unless these rules provide otherwise, on any other motion.
(4) Effect of a Master's Findings. A master's findings, to the
extent adopted by the court, must be considered the court's
findings.
(5) Questioning the Evidentiary Support. A party may later
question the sufficiency of the evidence supporting the findings,
whether or not the party requested findings, objected to
them, moved to amend them, or moved for partial findings.
(6) Setting Aside the Findings. Findings of fact, whether based
on oral or other evidence, must not be set aside unless clearly
erroneous, and the reviewing court must give due regard to
the trial court's opportunity to judge the witnesses' credibil-
ity.
(b) AMENDED OR ADDITIONAL FINDINGS. On a party's motion filed
no later than 10 days after the entry of judgment, the court may
amend its findings -- or make additional findings -- and may
amend the judgment accordingly. The motion may accompany a
motion for a new trial under Rule 59.
(c) JUDGMENT ON PARTIAL FINDINGS. If a party has been fully
heard on an issue during a nonjury trial and the court finds
against the party on that issue, the court may enter judgment
against the party on a claim or defense that, under the controlling
law, can be maintained or defeated only with a favorable finding
on that issue. The court may, however, decline to render any judgment
until the close of the evidence. A judgment on partial findings
must be supported by findings of fact and conclusions of law
as required by Rule 52(a).
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985;
Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr.
27, 1995, eff. Dec. 1, 1995; Apr. 30, 2007, eff. Dec. 1, 2007.)
71 Rule 53FEDERAL RULES OF CIVIL PROCEDURE
Rule 53. Masters
(a) APPOINTMENT.
(1) Scope. Unless a statute provides otherwise, a court may
appoint a master only to:
(A) perform duties consented to by the parties;
(B) hold trial proceedings and make or recommend findings
of fact on issues to be decided without a jury if appointment
is warranted by:
(i) some exceptional condition; or
(ii) the need to perform an accounting or resolve a
difficult computation of damages; or
(C) address pretrial and posttrial matters that cannot be
effectively and timely addressed by an available district
judge or magistrate judge of the district.
(2) Disqualification. A master must not have a relationship to
the parties, attorneys, action, or court that would require disqualification
of a judge under 28 U.S.C. § 455, unless the parties,
with the court's approval, consent to the appointment
after the master discloses any potential grounds for disquali-
fication.
(3) Possible Expense or Delay. In appointing a master, the
court must consider the fairness of imposing the likely expenses
on the parties and must protect against unreasonable
expense or delay.
(b) ORDER APPOINTING A MASTER.
(1) Notice. Before appointing a master, the court must give
the parties notice and an opportunity to be heard. Any party
may suggest candidates for appointment.
(2) Contents. The appointing order must direct the master to
proceed with all reasonable diligence and must state:
(A) the master's duties, including any investigation or
enforcement duties, and any limits on the master's authority
under Rule 53(c);
(B) the circumstances, if any, in which the master may
communicate ex parte with the court or a party;
(C) the nature of the materials to be preserved and filed
as the record of the master's activities;
(D) the time limits, method of filing the record, other
procedures, and standards for reviewing the master's orders,
findings, and recommendations; and
(E) the basis, terms, and procedure for fixing the master's
compensation under Rule 53(g).
(3) Issuing. The court may issue the order only after:
(A) the master files an affidavit disclosing whether there
is any ground for disqualification under 28 U.S.C. § 455; and
(B) if a ground is disclosed, the parties, with the court's
approval, waive the disqualification.
(4) Amending. The order may be amended at any time after
notice to the parties and an opportunity to be heard.
(c) MASTER'S AUTHORITY.
(1) In General. Unless the appointing order directs otherwise,
a master may:
(A) regulate all proceedings;
(B) take all appropriate measures to perform the assigned
duties fairly and efficiently; and
72Rule 53 FEDERAL RULES OF CIVIL PROCEDURE
(C) if conducting an evidentiary hearing, exercise the appointing
court's power to compel, take, and record evi-
dence.
(2) Sanctions. The master may by order impose on a party
any noncontempt sanction provided by Rule 37 or 45, and may
recommend a contempt sanction against a party and sanctions
against a nonparty.
(d) MASTER'S ORDERS. A master who issues an order must file it
and promptly serve a copy on each party. The clerk must enter
the order on the docket.
(e) MASTER'S REPORTS. A master must report to the court as required
by the appointing order. The master must file the report
and promptly serve a copy on each party, unless the court orders
otherwise.
(f) ACTION ON THE MASTER'S ORDER, REPORT, OR RECOMMENDA-
TIONS.
(1) Opportunity for a Hearing; Action in General. In acting on
a master's order, report, or recommendations, the court must
give the parties notice and an opportunity to be heard; may
receive evidence; and may adopt or affirm, modify, wholly or
partly reject or reverse, or resubmit to the master with in-
structions.
(2) Time to Object or Move to Adopt or Modify. A party may file
objections to -- or a motion to adopt or modify -- the master's
order, report, or recommendations no later than 20 days after
a copy is served, unless the court sets a different time.
(3) Reviewing Factual Findings. The court must decide de
novo all objections to findings of fact made or recommended
by a master, unless the parties, with the court's approval,
stipulate that:
(A) the findings will be reviewed for clear error; or
(B) the findings of a master appointed under Rule
53(a)(1)(A) or (C) will be final.
(4) Reviewing Legal Conclusions. The court must decide de
novo all objections to conclusions of law made or recommended
by a master.
(5) Reviewing Procedural Matters. Unless the appointing order
establishes a different standard of review, the court may set
aside a master's ruling on a procedural matter only for an
abuse of discretion.
(g) COMPENSATION.
(1) Fixing Compensation. Before or after judgment, the court
must fix the master's compensation on the basis and terms
stated in the appointing order, but the court may set a new
basis and terms after giving notice and an opportunity to be
heard.
(2) Payment. The compensation must be paid either:
(A) by a party or parties; or
(B) from a fund or subject matter of the action within
the court's control.
(3) Allocating Payment. The court must allocate payment
among the parties after considering the nature and amount of
the controversy, the parties' means, and the extent to which
any party is more responsible than other parties for the reference
to a master. An interim allocation may be amended to
reflect a decision on the merits.
73 Rule 54FEDERAL RULES OF CIVIL PROCEDURE
(h) APPOINTING A MAGISTRATE JUDGE. A magistrate judge is subject
to this rule only when the order referring a matter to the
magistrate judge states that the reference is made under this rule.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 28, 1983, eff. Aug.
1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991;
Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1, 2003; Apr.
30, 2007, eff. Dec. 1, 2007.)
TITLE VII. JUDGMENT
Rule 54. Judgment; Costs
(a) DEFINITION; FORM. ``Judgment'' as used in these rules includes
a decree and any order from which an appeal lies. A judgment
should not include recitals of pleadings, a master's report,
or a record of prior proceedings.
(b) JUDGMENT ON MULTIPLE CLAIMS OR INVOLVING MULTIPLE PARTIES.
When an action presents more than one claim for relief --
whether as a claim, counterclaim, crossclaim, or third-party
claim -- or when multiple parties are involved, the court may direct
entry of a final judgment as to one or more, but fewer than
all, claims or parties only if the court expressly determines that
there is no just reason for delay. Otherwise, any order or other decision,
however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties
does not end the action as to any of the claims or parties and may
be revised at any time before the entry of a judgment adjudicating
all the claims and all the parties' rights and liabilities.
(c) DEMAND FOR JUDGMENT; RELIEF TO BE GRANTED. A default
judgment must not differ in kind from, or exceed in amount, what
is demanded in the pleadings. Every other final judgment should
grant the relief to which each party is entitled, even if the party
has not demanded that relief in its pleadings.
(d) COSTS; ATTORNEY'S FEES.
(1) Costs Other Than Attorney's Fees. Unless a federal statute,
these rules, or a court order provides otherwise, costs -- other
than attorney's fees -- should be allowed to the prevailing
party. But costs against the United States, its officers, and its
agencies may be imposed only to the extent allowed by law.
The clerk may tax costs on 1 day's notice. On motion served
within the next 5 days, the court may review the clerk's ac-
tion.
(2) Attorney's Fees.
(A) Claim to Be by Motion. A claim for attorney's fees and
related nontaxable expenses must be made by motion unless
the substantive law requires those fees to be proved at
trial as an element of damages.
(B) Timing and Contents of the Motion. Unless a statute or
a court order provides otherwise, the motion must:
(i) be filed no later than 14 days after the entry of
judgment;
(ii) specify the judgment and the statute, rule, or
other grounds entitling the movant to the award;
(iii) state the amount sought or provide a fair estimate
of it; and
74Rule 55 FEDERAL RULES OF CIVIL PROCEDURE
(iv) disclose, if the court so orders, the terms of any
agreement about fees for the services for which the
claim is made.
(C) Proceedings. Subject to Rule 23(h), the court must, on
a party's request, give an opportunity for adversary submissions
on the motion in accordance with Rule 43(c) or 78.
The court may decide issues of liability for fees before receiving
submissions on the value of services. The court
must find the facts and state its conclusions of law as provided
in Rule 52(a).
(D) Special Procedures by Local Rule; Reference to a Master
or a Magistrate Judge. By local rule, the court may establish
special procedures to resolve fee-related issues without
extensive evidentiary hearings. Also, the court may
refer issues concerning the value of services to a special
master under Rule 53 without regard to the limitations of
Rule 53(a)(1), and may refer a motion for attorney's fees to
a magistrate judge under Rule 72(b) as if it were a dispositive
pretrial matter.
(E) Exceptions. Subparagraphs (A)­(D) do not apply to
claims for fees and expenses as sanctions for violating
these rules or as sanctions under 28 U.S.C. § 1927.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 17, 1961, eff. July
19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993;
Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 27, 2003, eff. Dec. 1, 2003; Apr.
30, 2007, eff. Dec. 1, 2007.)
Rule 55. Default; Default Judgment
(a) ENTERING A DEFAULT. When a party against whom a judgment
for affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise,
the clerk must enter the party's default.
(b) ENTERING A DEFAULT JUDGMENT.
(1) By the Clerk. If the plaintiff's claim is for a sum certain
or a sum that can be made certain by computation, the clerk
-- on the plaintiff's request, with an affidavit showing the
amount due -- must enter judgment for that amount and costs
against a defendant who has been defaulted for not appearing
and who is neither a minor nor an incompetent person.
(2) By the Court. In all other cases, the party must apply to
the court for a default judgment. A default judgment may be
entered against a minor or incompetent person only if represented
by a general guardian, conservator, or other like fiduciary
who has appeared. If the party against whom a default
judgment is sought has appeared personally or by a representative,
that party or its representative must be served with
written notice of the application at least 3 days before the
hearing. The court may conduct hearings or make referrals --
preserving any federal statutory right to a jury trial -- when,
to enter or effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
75 Rule 56FEDERAL RULES OF CIVIL PROCEDURE
(c) SETTING ASIDE A DEFAULT OR A DEFAULT JUDGMENT. The
court may set aside an entry of default for good cause, and it may
set aside a default judgment under Rule 60(b).
(d) JUDGMENT AGAINST THE UNITED STATES. A default judgment
may be entered against the United States, its officers, or its agencies
only if the claimant establishes a claim or right to relief by
evidence that satisfies the court.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 56. Summary Judgment
(a) BY A CLAIMING PARTY. A party claiming relief may move,
with or without supporting affidavits, for summary judgment on
all or part of the claim. The motion may be filed at any time
after:
(1) 20 days have passed from commencement of the action; or
(2) the opposing party serves a motion for summary judg-
ment.
(b) BY A DEFENDING PARTY. A party against whom relief is
sought may move at any time, with or without supporting affidavits,
for summary judgment on all or part of the claim.
(c) SERVING THE MOTION; PROCEEDINGS. The motion must be
served at least 10 days before the day set for the hearing. An opposing
party may serve opposing affidavits before the hearing day.
The judgment sought should be rendered if the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.
(d) CASE NOT FULLY ADJUDICATED ON THE MOTION.
(1) Establishing Facts. If summary judgment is not rendered
on the whole action, the court should, to the extent practicable,
determine what material facts are not genuinely at
issue. The court should so determine by examining the pleadings
and evidence before it and by interrogating the attorneys.
It should then issue an order specifying what facts -- including
items of damages or other relief -- are not genuinely at issue.
The facts so specified must be treated as established in the ac-
tion.
(2) Establishing Liability. An interlocutory summary judgment
may be rendered on liability alone, even if there is a genuine
issue on the amount of damages.
(e) AFFIDAVITS; FURTHER TESTIMONY.
(1) In General. A supporting or opposing affidavit must be
made on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant is competent
to testify on the matters stated. If a paper or part of a paper
is referred to in an affidavit, a sworn or certified copy must be
attached to or served with the affidavit. The court may permit
an affidavit to be supplemented or opposed by depositions, answers
to interrogatories, or additional affidavits.
(2) Opposing Party's Obligation to Respond. When a motion for
summary judgment is properly made and supported, an opposing
party may not rely merely on allegations or denials in its
own pleading; rather, its response must -- by affidavits or as
76Rule 57 FEDERAL RULES OF CIVIL PROCEDURE
otherwise provided in this rule -- set out specific facts showing
a genuine issue for trial. If the opposing party does not so
respond, summary judgment should, if appropriate, be entered
against that party.
(f) WHEN AFFIDAVITS ARE UNAVAILABLE. If a party opposing the
motion shows by affidavit that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may:
(1) deny the motion;
(2) order a continuance to enable affidavits to be obtained,
depositions to be taken, or other discovery to be undertaken;
or
(3) issue any other just order.
(g) AFFIDAVIT SUBMITTED IN BAD FAITH. If satisfied that an affidavit
under this rule is submitted in bad faith or solely for delay,
the court must order the submitting party to pay the other party
the reasonable expenses, including attorney's fees, it incurred as
a result. An offending party or attorney may also be held in con-
tempt.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 57. Declaratory Judgment
These rules govern the procedure for obtaining a declaratory
judgment under 28 U.S.C. § 2201. Rules 38 and 39 govern a demand
for a jury trial. The existence of another adequate remedy does
not preclude a declaratory judgment that is otherwise appropriate.
The court may order a speedy hearing of a declaratoryjudgment
action.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 58. Entering Judgment
(a) SEPARATE DOCUMENT. Every judgment and amended judgment
must be set out in a separate document, but a separate document
is not required for an order disposing of a motion:
(1) for judgment under Rule 50(b);
(2) to amend or make additional findings under Rule 52(b);
(3) for attorney's fees under Rule 54;
(4) for a new trial, or to alter or amend the judgment, under
Rule 59; or
(5) for relief under Rule 60.
(b) ENTERING JUDGMENT.
(1) Without the Court's Direction. Subject to Rule 54(b) and unless
the court orders otherwise, the clerk must, without awaiting
the court's direction, promptly prepare, sign, and enter
the judgment when:
(A) the jury returns a general verdict;
(B) the court awards only costs or a sum certain; or
(C) the court denies all relief.
(2) Court's Approval Required. Subject to Rule 54(b), the court
must promptly approve the form of the judgment, which the
clerk must promptly enter, when:
(A) the jury returns a special verdict or a general verdict
with answers to written questions; or
77 Rule 59FEDERAL RULES OF CIVIL PROCEDURE
(B) the court grants other relief not described in this
subdivision (b).
(c) TIME OF ENTRY. For purposes of these rules, judgment is entered
at the following times:
(1) if a separate document is not required, when the judgment
is entered in the civil docket under Rule 79(a); or
(2) if a separate document is required, when the judgment is
entered in the civil docket under Rule 79(a) and the earlier of
these events occurs:
(A) it is set out in a separate document; or
(B) 150 days have run from the entry in the civil docket.
(d) REQUEST FOR ENTRY. A party may request that judgment be
set out in a separate document as required by Rule 58(a).
(e) COST OR FEE AWARDS. Ordinarily, the entry of judgment may
not be delayed, nor the time for appeal extended, in order to tax
costs or award fees. But if a timely motion for attorney's fees is
made under Rule 54(d)(2), the court may act before a notice of appeal
has been filed and become effective to order that the motion
have the same effect under Federal Rule of Appellate Procedure
4(a)(4) as a timely motion under Rule 59.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002;
Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 59. New Trial; Altering or Amending a Judgment
(a) IN GENERAL.
(1) Grounds for New Trial. The court may, on motion, grant
a new trial on all or some of the issues -- and to any party --
as follows:
(A) after a jury trial, for any reason for which a new
trial has heretofore been granted in an action at law in
federal court; or
(B) after a nonjury trial, for any reason for which a rehearing
has heretofore been granted in a suit in equity in
federal court.
(2) Further Action After a Nonjury Trial. After a nonjury trial,
the court may, on motion for a new trial, open the judgment
if one has been entered, take additional testimony, amend
findings of fact and conclusions of law or make new ones, and
direct the entry of a new judgment.
(b) TIME TO FILE A MOTION FOR A NEW TRIAL. A motion for a new
trial must be filed no later than 10 days after the entry of judg-
ment.
(c) TIME TO SERVE AFFIDAVITS. When a motion for a new trial is
based on affidavits, they must be filed with the motion. The opposing
party has 10 days after being served to file opposing affidavits;
but that period may be extended for up to 20 days, either by
the court for good cause or by the parties' stipulation. The court
may permit reply affidavits.
(d) NEW TRIAL ON THE COURT'S INITIATIVE OR FOR REASONS NOT
IN THE MOTION. No later than 10 days after the entry of judgment,
the court, on its own, may order a new trial for any reason that
would justify granting one on a party's motion. After giving the
parties notice and an opportunity to be heard, the court may
78Rule 60 FEDERAL RULES OF CIVIL PROCEDURE
grant a timely motion for a new trial for a reason not stated in
the motion. In either event, the court must specify the reasons in
its order.
(e) MOTION TO ALTER OR AMEND A JUDGMENT. A motion to alter
or amend a judgment must be filed no later than 10 days after the
entry of the judgment.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July
1, 1966; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 60. Relief from a Judgment or Order
(a) CORRECTIONS BASED ON CLERICAL MISTAKES; OVERSIGHTS AND
OMISSIONS. The court may correct a clerical mistake or a mistake
arising from oversight or omission whenever one is found in a
judgment, order, or other part of the record. The court may do so
on motion or on its own, with or without notice. But after an appeal
has been docketed in the appellate court and while it is pending,
such a mistake may be corrected only with the appellate
court's leave.
(b) GROUNDS FOR RELIEF FROM A FINAL JUDGMENT, ORDER, OR
PROCEEDING. On motion and just terms, the court may relieve a
party or its legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a
new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
(c) TIMING AND EFFECT OF THE MOTION.
(1) Timing. A motion under Rule 60(b) must be made within
a reasonable time -- and for reasons (1), (2), and (3) no more
than a year after the entry of the judgment or order or the
date of the proceeding.
(2) Effect on Finality. The motion does not affect the judgment's
finality or suspend its operation.
(d) OTHER POWERS TO GRANT RELIEF. This rule does not limit a
court's power to:
(1) entertain an independent action to relieve a party from
a judgment, order, or proceeding;
(2) grant relief under 28 U.S.C. § 1655 to a defendant who was
not personally notified of the action; or
(3) set aside a judgment for fraud on the court.
(e) BILLS AND WRITS ABOLISHED. The following are abolished:
bills of review, bills in the nature of bills of review, and writs of
coram nobis, coram vobis, and audita querela.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
79 Rule 62FEDERAL RULES OF CIVIL PROCEDURE
Rule 61. Harmless Error
Unless justice requires otherwise, no error in admitting or excluding
evidence -- or any other error by the court or a party --
is ground for granting a new trial, for setting aside a verdict, or
for vacating, modifying, or otherwise disturbing a judgment or
order. At every stage of the proceeding, the court must disregard
all errors and defects that do not affect any party's substantial
rights.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 62. Stay of Proceedings to Enforce a Judgment
(a) AUTOMATIC STAY; EXCEPTIONS FOR INJUNCTIONS, RECEIVERSHIPS,
AND PATENT ACCOUNTINGS. Except as stated in this rule, no
execution may issue on a judgment, nor may proceedings be taken
to enforce it, until 10 days have passed after its entry. But unless
the court orders otherwise, the following are not stayed after
being entered, even if an appeal is taken:
(1) an interlocutory or final judgment in an action for an injunction
or a receivership; or
(2) a judgment or order that directs an accounting in an action
for patent infringement.
(b) STAY PENDING THE DISPOSITION OF A MOTION. On appropriate
terms for the opposing party's security, the court may stay the
execution of a judgment -- or any proceedings to enforce it --
pending disposition of any of the following motions:
(1) under Rule 50, for judgment as a matter of law;
(2) under Rule 52(b), to amend the findings or for additional
findings;
(3) under Rule 59, for a new trial or to alter or amend a judgment;
or
(4) under Rule 60, for relief from a judgment or order.
(c) INJUNCTION PENDING AN APPEAL. While an appeal is pending
from an interlocutory order or final judgment that grants, dissolves,
or denies an injunction, the court may suspend, modify, restore,
or grant an injunction on terms for bond or other terms
that secure the opposing party's rights. If the judgment appealed
from is rendered by a statutory three-judge district court, the
order must be made either:
(1) by that court sitting in open session; or
(2) by the assent of all its judges, as evidenced by their sig-
natures.
(d) STAY WITH BOND ON APPEAL. If an appeal is taken, the appellant
may obtain a stay by supersedeas bond, except in an action
described in Rule 62(a)(1) or (2). The bond may be given upon or
after filing the notice of appeal or after obtaining the order allowing
the appeal. The stay takes effect when the court approves the
bond.
(e) STAY WITHOUT BOND ON AN APPEAL BY THE UNITED STATES,
ITS OFFICERS, OR ITS AGENCIES. The court must not require a bond,
obligation, or other security from the appellant when granting a
stay on an appeal by the United States, its officers, or its agencies
or on an appeal directed by a department of the federal govern-
ment.
(f) STAY IN FAVOR OF A JUDGMENT DEBTOR UNDER STATE LAW. If
a judgment is a lien on the judgment debtor's property under the
80Rule 63 FEDERAL RULES OF CIVIL PROCEDURE
law of the state where the court is located, the judgment debtor
is entitled to the same stay of execution the state court would
give.
(g) APPELLATE COURT'S POWER NOT LIMITED. This rule does not
limit the power of the appellate court or one of its judges or jus-
tices:
(1) to stay proceedings -- or suspend, modify, restore, or
grant an injunction -- while an appeal is pending; or
(2) to issue an order to preserve the status quo or the effectiveness
of the judgment to be entered.
(h) STAY WITH MULTIPLE CLAIMS OR PARTIES. A court may stay
the enforcement of a final judgment entered under Rule 54(b) until
it enters a later judgment or judgments, and may prescribe terms
necessary to secure the benefit of the stayed judgment for the
party in whose favor it was entered.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Apr. 17, 1961, eff. July 19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 63. Judge's Inability to Proceed
If a judge conducting a hearing or trial is unable to proceed, any
other judge may proceed upon certifying familiarity with the
record and determining that the case may be completed without
prejudice to the parties. In a hearing or a nonjury trial, the successor
judge must, at a party's request, recall any witness whose
testimony is material and disputed and who is available to testify
again without undue burden. The successor judge may also recall
any other witness.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec.
1, 1991; Apr. 30, 2007, eff. Dec. 1, 2007.)
TITLE VIII. PROVISIONAL AND FINAL REMEDIES
Rule 64. Seizing a Person or Property
(a) REMEDIES UNDER STATE LAW -- IN GENERAL. At the commencement
of and throughout an action, every remedy is available
that, under the law of the state where the court is located,
provides for seizing a person or property to secure satisfaction of
the potential judgment. But a federal statute governs to the extent
it applies.
(b) SPECIFIC KINDS OF REMEDIES. The remedies available under
this rule include the following -- however designated and regardless
of whether state procedure requires an independent action:
* arrest;
* attachment;
* garnishment;
* replevin;
* sequestration; and
* other corresponding or equivalent remedies.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 65. Injunctions and Restraining Orders
(a) PRELIMINARY INJUNCTION.
(1) Notice. The court may issue a preliminary injunction only
on notice to the adverse party.
81 Rule 65FEDERAL RULES OF CIVIL PROCEDURE
(2) Consolidating the Hearing with the Trial on the Merits. Before
or after beginning the hearing on a motion for a preliminary
injunction, the court may advance the trial on the merits
and consolidate it with the hearing. Even when consolidation
is not ordered, evidence that is received on the motion and
that would be admissible at trial becomes part of the trial
record and need not be repeated at trial. But the court must
preserve any party's right to a jury trial.
(b) TEMPORARY RESTRAINING ORDER.
(1) Issuing Without Notice. The court may issue a temporary
restraining order without written or oral notice to the adverse
party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury, loss,
or damage will result to the movant before the adverse
party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts
made to give notice and the reasons why it should not be
required.
(2) Contents; Expiration. Every temporary restraining order
issued without notice must state the date and hour it was issued;
describe the injury and state why it is irreparable; state
why the order was issued without notice; and be promptly filed
in the clerk's office and entered in the record. The order expires
at the time after entry -- not to exceed 10 days -- that
the court sets, unless before that time the court, for good
cause, extends it for a like period or the adverse party consents
to a longer extension. The reasons for an extension must
be entered in the record.
(3) Expediting the Preliminary-Injunction Hearing. If the order
is issued without notice, the motion for a preliminary injunction
must be set for hearing at the earliest possible time, taking
precedence over all other matters except hearings on older
matters of the same character. At the hearing, the party who
obtained the order must proceed with the motion; if the party
does not, the court must dissolve the order.
(4) Motion to Dissolve. On 2 days' notice to the party who obtained
the order without notice -- or on shorter notice set by
the court -- the adverse party may appear and move to dissolve
or modify the order. The court must then hear and decide
the motion as promptly as justice requires.
(c) SECURITY. The court may issue a preliminary injunction or
a temporary restraining order only if the movant gives security in
an amount that the court considers proper to pay the costs and
damages sustained by any party found to have been wrongfully enjoined
or restrained. The United States, its officers, and its agencies
are not required to give security.
(d) CONTENTS AND SCOPE OF EVERY INJUNCTION AND RESTRAINING
ORDER.
(1) Contents. Every order granting an injunction and every
restraining order must:
(A) state the reasons why it issued;
(B) state its terms specifically; and
82Rule 65.1 FEDERAL RULES OF CIVIL PROCEDURE
(C) describe in reasonable detail -- and not by referring
to the complaint or other document -- the act or acts restrained
or required.
(2) Persons Bound. The order binds only the following who receive
actual notice of it by personal service or otherwise:
(A) the parties;
(B) the parties' officers, agents, servants, employees, and
attorneys; and
(C) other persons who are in active concert or participation
with anyone described in Rule 65(d)(2)(A) or (B).
(e) OTHER LAWS NOT MODIFIED. These rules do not modify the
following:
(1) any federal statute relating to temporary restraining orders
or preliminary injunctions in actions affecting employer
and employee;
(2) 28 U.S.C. § 2361, which relates to preliminary injunctions
in actions of interpleader or in the nature of interpleader; or
(3) 28 U.S.C. § 2284, which relates to actions that must be
heard and decided by a three-judge district court.
(f) COPYRIGHT IMPOUNDMENT. This rule applies to copyright-impoundment
proceedings.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 65.1. Proceedings Against a Surety
Whenever these rules (including the Supplemental Rules for Admiralty
or Maritime Claims and Asset Forfeiture Actions) require
or allow a party to give security, and security is given through a
bond or other undertaking with one or more sureties, each surety
submits to the court's jurisdiction and irrevocably appoints the
court clerk as its agent for receiving service of any papers that affect
its liability on the bond or undertaking. The surety's liability
may be enforced on motion without an independent action. The
motion and any notice that the court orders may be served on the
court clerk, who must promptly mail a copy of each to every surety
whose address is known.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 66. Receivers
These rules govern an action in which the appointment of a receiver
is sought or a receiver sues or is sued. But the practice in
administering an estate by a receiver or a similar court-appointed
officer must accord with the historical practice in federal courts
or with a local rule. An action in which a receiver has been appointed
may be dismissed only by court order.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 67. Deposit into Court
(a) DEPOSITING PROPERTY. If any part of the relief sought is a
money judgment or the disposition of a sum of money or some
83 Rule 69FEDERAL RULES OF CIVIL PROCEDURE
other deliverable thing, a party -- on notice to every other party
and by leave of court -- may deposit with the court all or part of
the money or thing, whether or not that party claims any of it.
The depositing party must deliver to the clerk a copy of the order
permitting deposit.
(b) INVESTING AND WITHDRAWING FUNDS. Money paid into court
under this rule must be deposited and withdrawn in accordance
with 28 U.S.C. §§ 2041 and 2042 and any like statute. The money
must be deposited in an interest-bearing account or invested in a
court-approved, interest-bearing instrument.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 28, 1983, eff. Aug.
1, 1983; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 68. Offer of Judgment
(a) MAKING AN OFFER; JUDGMENT ON AN ACCEPTED OFFER. More
than 10 days before the trial begins, a party defending against a
claim may serve on an opposing party an offer to allow judgment
on specified terms, with the costs then accrued. If, within 10 days
after being served, the opposing party serves written notice accepting
the offer, either party may then file the offer and notice
of acceptance, plus proof of service. The clerk must then enter
judgment.
(b) UNACCEPTED OFFER. An unaccepted offer is considered withdrawn,
but it does not preclude a later offer. Evidence of an
unaccepted offer is not admissible except in a proceeding to determine
costs.
(c) OFFER AFTER LIABILITY IS DETERMINED. When one party's liability
to another has been determined but the extent of liability
remains to be determined by further proceedings, the party held
liable may make an offer of judgment. It must be served within
a reasonable time -- but at least 10 days -- before a hearing to determine
the extent of liability.
(d) PAYING COSTS AFTER AN UNACCEPTED OFFER. If the judgment
that the offeree finally obtains is not more favorable than the
unaccepted offer, the offeree must pay the costs incurred after the
offer was made.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July
1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 69. Execution
(a) IN GENERAL.
(1) Money Judgment; Applicable Procedure. A money judgment
is enforced by a writ of execution, unless the court directs
otherwise. The procedure on execution -- and in proceedings
supplementary to and in aid of judgment or execution -- must
accord with the procedure of the state where the court is located,
but a federal statute governs to the extent it applies.
(2) Obtaining Discovery. In aid of the judgment or execution,
the judgment creditor or a successor in interest whose interest
appears of record may obtain discovery from any person -- including
the judgment debtor -- as provided in these rules or by
the procedure of the state where the court is located.
(b) AGAINST CERTAIN PUBLIC OFFICERS. When a judgment has
been entered against a revenue officer in the circumstances stated
84Rule 70 FEDERAL RULES OF CIVIL PROCEDURE
in 28 U.S.C. § 2006, or against an officer of Congress in the circumstances
stated in 2 U.S.C. § 118, the judgment must be satisfied as
those statutes provide.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July
1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 70. Enforcing a Judgment for a Specific Act
(a) PARTY'S FAILURE TO ACT; ORDERING ANOTHER TO ACT. If a
judgment requires a party to convey land, to deliver a deed or
other document, or to perform any other specific act and the
party fails to comply within the time specified, the court may
order the act to be done -- at the disobedient party's expense --
by another person appointed by the court. When done, the act has
the same effect as if done by the party.
(b) VESTING TITLE. If the real or personal property is within the
district, the court -- instead of ordering a conveyance -- may
enter a judgment divesting any party's title and vesting it in others.
That judgment has the effect of a legally executed convey-
ance.
(c) OBTAINING A WRIT OF ATTACHMENT OR SEQUESTRATION. On application
by a party entitled to performance of an act, the clerk
must issue a writ of attachment or sequestration against the disobedient
party's property to compel obedience.
(d) OBTAINING A WRIT OF EXECUTION OR ASSISTANCE. On application
by a party who obtains a judgment or order for possession,
the clerk must issue a writ of execution or assistance.
(e) HOLDING IN CONTEMPT. The court may also hold the disobedient
party in contempt.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 71. Enforcing Relief For or Against a Nonparty
When an order grants relief for a nonparty or may be enforced
against a nonparty, the procedure for enforcing the order is the
same as for a party.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec.
1, 2007.)
TITLE IX. SPECIAL PROCEEDINGS
Rule 71.1. Condemning Real or Personal Property
(a) APPLICABILITY OF OTHER RULES. These rules govern proceedings
to condemn real and personal property by eminent domain,
except as this rule provides otherwise.
(b) JOINDER OF PROPERTIES. The plaintiff may join separate
pieces of property in a single action, no matter whether they are
owned by the same persons or sought for the same use.
(c) COMPLAINT.
(1) Caption. The complaint must contain a caption as provided
in Rule 10(a). The plaintiff must, however, name as defendants
both the property -- designated generally by kind,
quantity, and location -- and at least one owner of some part
of or interest in the property.
(2) Contents. The complaint must contain a short and plain
statement of the following:
85 Rule 71.1FEDERAL RULES OF CIVIL PROCEDURE
(A) the authority for the taking;
(B) the uses for which the property is to be taken;
(C) a description sufficient to identify the property;
(D) the interests to be acquired; and
(E) for each piece of property, a designation of each defendant
who has been joined as an owner or owner of an interest
in it.
(3) Parties. When the action commences, the plaintiff need
join as defendants only those persons who have or claim an interest
in the property and whose names are then known. But
before any hearing on compensation, the plaintiff must add as
defendants all those persons who have or claim an interest and
whose names have become known or can be found by a reasonably
diligent search of the records, considering both the property's
character and value and the interests to be acquired. All
others may be made defendants under the designation ``Unknown
Owners.''
(4) Procedure. Notice must be served on all defendants as provided
in Rule 71.1(d), whether they were named as defendants
when the action commenced or were added later. A defendant
may answer as provided in Rule 71.1(e). The court, meanwhile,
may order any distribution of a deposit that the facts warrant.
(5) Filing; Additional Copies. In addition to filing the complaint,
the plaintiff must give the clerk at least one copy for
the defendants' use and additional copies at the request of the
clerk or a defendant.
(d) PROCESS.
(1) Delivering Notice to the Clerk. On filing a complaint, the
plaintiff must promptly deliver to the clerk joint or several
notices directed to the named defendants. When adding defendants,
the plaintiff must deliver to the clerk additional notices
directed to the new defendants.
(2) Contents of the Notice.
(A) Main Contents. Each notice must name the court, the
title of the action, and the defendant to whom it is directed.
It must describe the property sufficiently to identify
it, but need not describe any property other than that
to be taken from the named defendant. The notice must
also state:
(i) that the action is to condemn property;
(ii) the interest to be taken;
(iii) the authority for the taking;
(iv) the uses for which the property is to be taken;
(v) that the defendant may serve an answer on the
plaintiff's attorney within 20 days after being served
with the notice;
(vi) that the failure to so serve an answer constitutes
consent to the taking and to the court's authority to
proceed with the action and fix the compensation; and
(vii) that a defendant who does not serve an answer
may file a notice of appearance.
(B) Conclusion. The notice must conclude with the name,
telephone number, and e-mail address of the plaintiff's attorney
and an address within the district in which the action
is brought where the attorney may be served.
86Rule 71.1 FEDERAL RULES OF CIVIL PROCEDURE
(3) Serving the Notice.
(A) Personal Service. When a defendant whose address is
known resides within the United States or a territory subject
to the administrative or judicial jurisdiction of the
United States, personal service of the notice (without a
copy of the complaint) must be made in accordance with
Rule 4.
(B) Service by Publication.
(i) A defendant may be served by publication only
when the plaintiff's attorney files a certificate stating
that the attorney believes the defendant cannot be personally
served, because after diligent inquiry within
the state where the complaint is filed, the defendant's
place of residence is still unknown or, if known, that
it is beyond the territorial limits of personal service.
Service is then made by publishing the notice -- once
a week for at least 3 successive weeks -- in a newspaper
published in the county where the property is located
or, if there is no such newspaper, in a newspaper
with general circulation where the property is located.
Before the last publication, a copy of the notice must
also be mailed to every defendant who cannot be personally
served but whose place of residence is then
known. Unknown owners may be served by publication
in the same manner by a notice addressed to ``Unknown
Owners.''
(ii) Service by publication is complete on the date of
the last publication. The plaintiff's attorney must
prove publication and mailing by a certificate, attach
a printed copy of the published notice, and mark on
the copy the newspaper's name and the dates of publi-
cation.
(4) Effect of Delivery and Service. Delivering the notice to the
clerk and serving it have the same effect as serving a summons
under Rule 4.
(5) Amending the Notice; Proof of Service and Amending the
Proof. Rule 4(a)(2) governs amending the notice. Rule 4(l) governs
proof of service and amending it.
(e) APPEARANCE OR ANSWER.
(1) Notice of Appearance. A defendant that has no objection or
defense to the taking of its property may serve a notice of appearance
designating the property in which it claims an interest.
The defendant must then be given notice of all later proceedings
affecting the defendant.
(2) Answer. A defendant that has an objection or defense to
the taking must serve an answer within 20 days after being
served with the notice. The answer must:
(A) identify the property in which the defendant claims
an interest;
(B) state the nature and extent of the interest; and
(C) state all the defendant's objections and defenses to
the taking.
(3) Waiver of Other Objections and Defenses; Evidence on Compensation.
A defendant waives all objections and defenses not
stated in its answer. No other pleading or motion asserting an
87 Rule 71.1FEDERAL RULES OF CIVIL PROCEDURE
additional objection or defense is allowed. But at the trial on
compensation, a defendant -- whether or not it has previously
appeared or answered -- may present evidence on the amount
of compensation to be paid and may share in the award.
(f) AMENDING PLEADINGS. Without leave of court, the plaintiff
may -- as often as it wants -- amend the complaint at any time
before the trial on compensation. But no amendment may be made
if it would result in a dismissal inconsistent with Rule 71.1(i)(1) or
(2). The plaintiff need not serve a copy of an amendment, but must
serve notice of the filing, as provided in Rule 5(b), on every affected
party who has appeared and, as provided in Rule 71.1(d), on
every affected party who has not appeared. In addition, the plaintiff
must give the clerk at least one copy of each amendment for
the defendants' use, and additional copies at the request of the
clerk or a defendant. A defendant may appear or answer in the
time and manner and with the same effect as provided in Rule
71.1(e).
(g) SUBSTITUTING PARTIES. If a defendant dies, becomes incompetent,
or transfers an interest after being joined, the court may,
on motion and notice of hearing, order that the proper party be
substituted. Service of the motion and notice on a nonparty must
be made as provided in Rule 71.1(d)(3).
(h) TRIAL OF THE ISSUES.
(1) Issues Other Than Compensation; Compensation. In an action
involving eminent domain under federal law, the court
tries all issues, including compensation, except when compensation
must be determined:
(A) by any tribunal specially constituted by a federal
statute to determine compensation; or
(B) if there is no such tribunal, by a jury when a party
demands one within the time to answer or within any additional
time the court sets, unless the court appoints a
commission.
(2) Appointing a Commission; Commission's Powers and Report.
(A) Reasons for Appointing. If a party has demanded a
jury, the court may instead appoint a three-person commission
to determine compensation because of the character,
location, or quantity of the property to be condemned
or for other just reasons.
(B) Alternate Commissioners. The court may appoint up to
two additional persons to serve as alternate commissioners
to hear the case and replace commissioners who,
before a decision is filed, the court finds unable or disqualified
to perform their duties. Once the commission
renders its final decision, the court must discharge any alternate
who has not replaced a commissioner.
(C) Examining the Prospective Commissioners. Before making
its appointments, the court must advise the parties of
the identity and qualifications of each prospective commissioner
and alternate, and may permit the parties to examine
them. The parties may not suggest appointees, but
for good cause may object to a prospective commissioner
or alternate.
88Rule 71.1 FEDERAL RULES OF CIVIL PROCEDURE
(D) Commission's Powers and Report. A commission has
the powers of a master under Rule 53(c). Its action and report
are determined by a majority. Rule 53(d), (e), and (f)
apply to its action and report.
(i) DISMISSAL OF THE ACTION OR A DEFENDANT.
(1) Dismissing the Action.
(A) By the Plaintiff. If no compensation hearing on a
piece of property has begun, and if the plaintiff has not acquired
title or a lesser interest or taken possession, the
plaintiff may, without a court order, dismiss the action as
to that property by filing a notice of dismissal briefly describing
the property.
(B) By Stipulation. Before a judgment is entered vesting
the plaintiff with title or a lesser interest in or possession
of property, the plaintiff and affected defendants may,
without a court order, dismiss the action in whole or in
part by filing a stipulation of dismissal. And if the parties
so stipulate, the court may vacate a judgment already en-
tered.
(C) By Court Order. At any time before compensation has
been determined and paid, the court may, after a motion
and hearing, dismiss the action as to a piece of property.
But if the plaintiff has already taken title, a lesser interest,
or possession as to any part of it, the court must
award compensation for the title, lesser interest, or possession
taken.
(2) Dismissing a Defendant. The court may at any time dismiss
a defendant who was unnecessarily or improperly joined.
(3) Effect. A dismissal is without prejudice unless otherwise
stated in the notice, stipulation, or court order.
(j) DEPOSIT AND ITS DISTRIBUTION.
(1) Deposit. The plaintiff must deposit with the court any
money required by law as a condition to the exercise of eminent
domain and may make a deposit when allowed by stat-
ute.
(2) Distribution; Adjusting Distribution. After a deposit, the
court and attorneys must expedite the proceedings so as to
distribute the deposit and to determine and pay compensation.
If the compensation finally awarded to a defendant exceeds
the amount distributed to that defendant, the court must
enter judgment against the plaintiff for the deficiency. If the
compensation awarded to a defendant is less than the amount
distributed to that defendant, the court must enter judgment
against that defendant for the overpayment.
(k) CONDEMNATION UNDER A STATE'S POWER OF EMINENT DOMAIN.
This rule governs an action involving eminent domain under state
law. But if state law provides for trying an issue by jury -- or
for trying the issue of compensation by jury or commission or
both -- that law governs.
(l) COSTS. Costs are not subject to Rule 54(d).
(As added Apr. 30, 1951, eff. Aug. 1, 1951; amended Jan. 21, 1963, eff.
July 1, 1963; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Nov. 18, 1988; Apr. 22, 1993, eff.
Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 30, 2007, eff. Dec.
1, 2007.)
89 Rule 73FEDERAL RULES OF CIVIL PROCEDURE
Rule 72. Magistrate Judges: Pretrial Order
(a) NONDISPOSITIVE MATTERS. When a pretrial matter not dispositive
of a party's claim or defense is referred to a magistrate
judge to hear and decide, the magistrate judge must promptly
conduct the required proceedings and, when appropriate, issue a
written order stating the decision. A party may serve and file objections
to the order within 10 days after being served with a copy.
A party may not assign as error a defect in the order not timely
objected to. The district judge in the case must consider timely
objections and modify or set aside any part of the order that is
clearly erroneous or is contrary to law.
(b) DISPOSITIVE MOTIONS AND PRISONER PETITIONS.
(1) Findings and Recommendations. A magistrate judge must
promptly conduct the required proceedings when assigned,
without the parties' consent, to hear a pretrial matter dispositive
of a claim or defense or a prisoner petition challenging
the conditions of confinement. A record must be made of all
evidentiary proceedings and may, at the magistrate judge's
discretion, be made of any other proceedings. The magistrate
judge must enter a recommended disposition, including, if appropriate,
proposed findings of fact. The clerk must promptly
mail a copy to each party.
(2) Objections. 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. Unless the
district judge orders otherwise, the objecting party must
promptly arrange for transcribing the record, or whatever portions
of it the parties agree to or the magistrate judge considers
sufficient.
(3) Resolving Objections. The district judge must determine de
novo any part of the magistrate judge's disposition that has
been properly objected to. The district judge may accept, reject,
or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with
instructions.
(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Apr. 30, 1991, eff.
Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 73. Magistrate Judges: Trial by Consent; Appeal
(a) TRIAL BY CONSENT. When authorized under 28 U.S.C. § 636(c),
a magistrate judge may, if all parties consent, conduct a civil action
or proceeding, including a jury or nonjury trial. A record
must be made in accordance with 28 U.S.C. § 636(c)(5).
(b) CONSENT PROCEDURE.
(1) In General. When a magistrate judge has been designated
to conduct civil actions or proceedings, the clerk must give
the parties written notice of their opportunity to consent
under 28 U.S.C. § 636(c). To signify their consent, the parties
must jointly or separately file a statement consenting to the
referral. A district judge or magistrate judge may be informed
90Rule 74 FEDERAL RULES OF CIVIL PROCEDURE
of a party's response to the clerk's notice only if all parties
have consented to the referral.
(2) Reminding the Parties About Consenting. A district judge,
magistrate judge, or other court official may remind the parties
of the magistrate judge's availability, but must also advise
them that they are free to withhold consent without adverse
substantive consequences.
(3) Vacating a Referral. On its own for good cause -- or when
a party shows extraordinary circumstances -- the district
judge may vacate a referral to a magistrate judge under this
rule.
(c) APPEALING A JUDGMENT. In accordance with 28 U.S.C.
§ 636(c)(3), an appeal from a judgment entered at a magistrate
judge's direction may be taken to the court of appeals as would
any other appeal from a district-court judgment.
(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec.
1, 1997; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 74. [Abrogated (Apr. 11, 1997, eff. Dec. 1, 1997).]
Rule 75. [Abrogated (Apr. 11, 1997, eff. Dec. 1, 1997).]
Rule 76. [Abrogated (Apr. 11, 1997, eff. Dec. 1, 1997).]
TITLE X. DISTRICT COURTS AND CLERKS: CONDUCTING
BUSINESS; ISSUING ORDERS
Rule 77. Conducting Business; Clerk's Authority; Notice of an
Order or Judgment
(a) WHEN COURT IS OPEN. Every district court is considered always
open for filing any paper, issuing and returning process,
making a motion, or entering an order.
(b) PLACE FOR TRIAL AND OTHER PROCEEDINGS. Every trial on the
merits must be conducted in open court and, so far as convenient,
in a regular courtroom. Any other act or proceeding may be done
or conducted by a judge in chambers, without the attendance of
the clerk or other court official, and anywhere inside or outside
the district. But no hearing -- other than one ex parte -- may be
conducted outside the district unless all the affected parties con-
sent.
(c) CLERK'S OFFICE HOURS; CLERK'S ORDERS.
(1) Hours. The clerk's office -- with a clerk or deputy on duty
-- must be open during business hours every day except Saturdays,
Sundays, and legal holidays. But a court may, by local
rule or order, require that the office be open for specified
hours on Saturday or a particular legal holiday other than one
listed in Rule 6(a)(4)(A).
(2) Orders. Subject to the court's power to suspend, alter, or
rescind the clerk's action for good cause, the clerk may:
(A) issue process;
(B) enter a default;
(C) enter a default judgment under Rule 55(b)(1); and
(D) act on any other matter that does not require the
court's action.
91 Rule 79FEDERAL RULES OF CIVIL PROCEDURE
(d) SERVING NOTICE OF AN ORDER OR JUDGMENT.
(1) Service. Immediately after entering an order or judgment,
the clerk must serve notice of the entry, as provided in Rule
5(b), on each party who is not in default for failing to appear.
The clerk must record the service on the docket. A party also
may serve notice of the entry as provided in Rule 5(b).
(2) Time to Appeal Not Affected by Lack of Notice. Lack of notice
of the entry does not affect the time for appeal or relieve
-- or authorize the court to relieve -- a party for failing to appeal
within the time allowed, except as allowed by Federal
Rule of Appellate Procedure (4)(a).
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971;
Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 23,
2001, eff. Dec. 1, 2001; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 78. Hearing Motions; Submission on Briefs
(a) PROVIDING A REGULAR SCHEDULE FOR ORAL HEARINGS. A court
may establish regular times and places for oral hearings on mo-
tions.
(b) PROVIDING FOR SUBMISSION ON BRIEFS. By rule or order, the
court may provide for submitting and determining motions on
briefs, without oral hearings.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 79. Records Kept by the Clerk
(a) CIVIL DOCKET.
(1) In General. The clerk must keep a record known as the
``civil docket'' in the form and manner prescribed by the Director
of the Administrative Office of the United States
Courts with the approval of the Judicial Conference of the
United States. The clerk must enter each civil action in the
docket. Actions must be assigned consecutive file numbers,
which must be noted in the docket where the first entry of the
action is made.
(2) Items to be Entered. The following items must be marked
with the file number and entered chronologically in the dock-
et:
(A) papers filed with the clerk;
(B) process issued, and proofs of service or other returns
showing execution; and
(C) appearances, orders, verdicts, and judgments.
(3) Contents of Entries; Jury Trial Demanded. Each entry must
briefly show the nature of the paper filed or writ issued, the
substance of each proof of service or other return, and the substance
and date of entry of each order and judgment. When a
jury trial has been properly demanded or ordered, the clerk
must enter the word ``jury'' in the docket.
(b) CIVIL JUDGMENTS AND ORDERS. The clerk must keep a copy
of every final judgment and appealable order; of every order affecting
title to or a lien on real or personal property; and of any
other order that the court directs to be kept. The clerk must keep
these in the form and manner prescribed by the Director of the
92Rule 80 FEDERAL RULES OF CIVIL PROCEDURE
Administrative Office of the United States Courts with the approval
of the Judicial Conference of the United States.
(c) INDEXES; CALENDARS. Under the court's direction, the clerk
must:
(1) keep indexes of the docket and of the judgments and orders
described in Rule 79(b); and
(2) prepare calendars of all actions ready for trial, distinguishing
jury trials from nonjury trials.
(d) OTHER RECORDS. The clerk must keep any other records required
by the Director of the Administrative Office of the United
States Courts with the approval of the Judicial Conference of the
United States.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Jan. 21, 1963, eff. July 1, 1963; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 80. Stenographic Transcript as Evidence
If stenographically reported testimony at a hearing or trial is
admissible in evidence at a later trial, the testimony may be
proved by a transcript certified by the person who reported it.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 30, 2007, eff. Dec.
1, 2007.)
TITLE XI. GENERAL PROVISIONS
Rule 81. Applicability of the Rules in General; Removed Actions
(a) APPLICABILITY TO PARTICULAR PROCEEDINGS.
(1) Prize Proceedings. These rules do not apply to prize proceedings
in admiralty governed by 10 U.S.C. §§ 7651­7681.
(2) Bankruptcy. These rules apply to bankruptcy proceedings
to the extent provided by the Federal Rules of Bankruptcy
Procedure.
(3) Citizenship. These rules apply to proceedings for admission
to citizenship to the extent that the practice in those proceedings
is not specified in federal statutes and has previously
conformed to the practice in civil actions. The provisions of 8
U.S.C. § 1451 for service by publication and for answer apply in
proceedings to cancel citizenship certificates.
(4) Special Writs. These rules apply to proceedings for habeas
corpus and for quo warranto to the extent that the practice in
those proceedings:
(A) is not specified in a federal statute, the Rules Governing
Section 2254 Cases, or the Rules Governing Section
2255 Cases; and
(B) has previously conformed to the practice in civil ac-
tions.
(5) Proceedings Involving a Subpoena. These rules apply to
proceedings to compel testimony or the production of documents
through a subpoena issued by a United States officer or
agency under a federal statute, except as otherwise provided
by statute, by local rule, or by court order in the proceedings.
(6) Other Proceedings. These rules, to the extent applicable,
govern proceedings under the following laws, except as these
laws provide other procedures:
(A) 7 U.S.C. §§ 292, 499g(c), for reviewing an order of the
Secretary of Agriculture;
93 Rule 81FEDERAL RULES OF CIVIL PROCEDURE
(B) 9 U.S.C., relating to arbitration;
(C) 15 U.S.C. § 522, for reviewing an order of the Secretary
of the Interior;
(D) 15 U.S.C. § 715d(c), for reviewing an order denying a
certificate of clearance;
(E) 29 U.S.C. §§ 159, 160, for enforcing an order of the National
Labor Relations Board;
(F) 33 U.S.C. §§ 918, 921, for enforcing or reviewing a compensation
order under the Longshore and Harbor Workers'
Compensation Act; and
(G) 45 U.S.C. § 159, for reviewing an arbitration award in
a railway-labor dispute.
(b) SCIRE FACIAS AND MANDAMUS. The writs of scire facias and
mandamus are abolished. Relief previously available through
them may be obtained by appropriate action or motion under
these rules.
(c) REMOVED ACTIONS.
(1) Applicability. These rules apply to a civil action after it
is removed from a state court.
(2) Further Pleading. After removal, repleading is unnecessary
unless the court orders it. A defendant who did not answer
before removal must answer or present other defenses or
objections under these rules within the longest of these peri-
ods:
(A) 20 days after receiving -- through service or otherwise
-- a copy of the initial pleading stating the claim for
relief;
(B) 20 days after being served with the summons for an
initial pleading on file at the time of service; or
(C) 5 days after the notice of removal is filed.
(3) Demand for a Jury Trial.
(A) As Affected by State Law. A party who, before removal,
expressly demanded a jury trial in accordance with
state law need not renew the demand after removal. If the
state law did not require an express demand for a jury
trial, a party need not make one after removal unless the
court orders the parties to do so within a specified time.
The court must so order at a party's request and may so
order on its own. A party who fails to make a demand
when so ordered waives a jury trial.
(B) Under Rule 38. If all necessary pleadings have been
served at the time of removal, a party entitled to a jury
trial under Rule 38 must be given one if the party serves
a demand within 10 days after:
(i) it files a notice of removal; or
(ii) it is served with a notice of removal filed by another
party.
(d) LAW APPLICABLE.
(1) State Law. When these rules refer to state law, the term
``law'' includes the state's statutes and the state's judicial de-
cisions.
(2) District of Columbia. The term ``state'' includes, where appropriate,
the District of Columbia. When these rules provide
for state law to apply, in the District Court for the District of
Columbia:
94Rule 82 FEDERAL RULES OF CIVIL PROCEDURE
(A) the law applied in the District governs; and
(B) the term ``federal statute'' includes any Act of Congress
that applies locally to the District.
(As amended Dec. 28, 1939, eff. Apr. 3, 1941; Dec. 27, 1946, eff. Mar.
19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 30, 1951, eff. Aug. 1, 1951;
Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec.
4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971; Mar. 2, 1987,
eff. Aug. 1, 1987; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 29, 2002, eff. Dec.
1, 2002; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 82. Jurisdiction and Venue Unaffected
These rules do not extend or limit the jurisdiction of the district
courts or the venue of actions in those courts. An admiralty or
maritime claim under Rule 9(h) is not a civil action for purposes
of 28 U.S.C. §§ 1391­1392.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July
1, 1966; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 83. Rules by District Courts; Judge's Directives
(a) LOCAL RULES.
(1) In General. After giving public notice and an opportunity
for comment, a district court, acting by a majority of its district
judges, may adopt and amend rules governing its practice.
A local rule must be consistent with -- but not duplicate
-- federal statutes and rules adopted under 28 U.S.C. §§ 2072 and
2075, and must conform to any uniform numbering system prescribed
by the Judicial Conference of the United States. A
local rule takes effect on the date specified by the district
court and remains in effect unless amended by the court or abrogated
by the judicial council of the circuit. Copies of rules
and amendments must, on their adoption, be furnished to the
judicial council and the Administrative Office of the United
States Courts and be made available to the public.
(2) Requirement of Form. A local rule imposing a requirement
of form must not be enforced in a way that causes a party to
lose any right because of a nonwillful failure to comply.
(b) PROCEDURE WHEN THERE IS NO CONTROLLING LAW. A judge
may regulate practice in any manner consistent with federal law,
rules adopted under 28 U.S.C. §§ 2072 and 2075, and the district's
local rules. No sanction or other disadvantage may be imposed for
noncompliance with any requirement not in federal law, federal
rules, or the local rules unless the alleged violator has been furnished
in the particular case with actual notice of the require-
ment.
(As amended Apr. 29, 1985, eff. Aug. 1, 1985; Apr. 27, 1995, eff. Dec.
1, 1995; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 84. Forms
The forms in the Appendix suffice under these rules and illustrate
the simplicity and brevity that these rules contemplate.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 30, 2007, eff. Dec.
1, 2007.)
95 Rule 86FEDERAL RULES OF CIVIL PROCEDURE
Rule 85. Title
These rules may be cited as the Federal Rules of Civil Proce-
dure.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 86. Effective Dates
(a) IN GENERAL. These rules and any amendments take effect at
the time specified by the Supreme Court, subject to 28 U.S.C.
§ 2074. They govern:
(1) proceedings in an action commenced after their effective
date; and
(2) proceedings after that date in an action then pending un-
less:
(A) the Supreme Court specifies otherwise; or
(B) the court determines that applying them in a particular
action would be infeasible or work an injustice.
(b) DECEMBER 1, 2007 AMENDMENTS. If any provision in Rules
1­5.1, 6­73, or 77­86 conflicts with another law, priority in time for
the purpose of 28 U.S.C. § 2072(b) is not affected by the amendments
taking effect on December 1, 2007.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Apr. 17, 1961, eff. July 19, 1961; Jan. 21 and Mar. 18, 1963,
eff. July 1, 1963; Apr. 30, 2007, eff. Dec. 1, 2007.)
(97)
APPENDIX OF FORMS
As added April 30, 2007, effective December 1, 2007
(See Rule 84)
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134Rule A FEDERAL RULES OF CIVIL PROCEDURE
1 Title amended April 12, 2006, effective December 1, 2006.
SUPPLEMENTAL RULES FOR ADMIRALTY OR MARITIME
CLAIMS AND ASSET FORFEITURE ACTIONS 1
Rule A. Scope of Rules
(1) These Supplemental Rules apply to:
(A) the procedure in admiralty and maritime claims within
the meaning of Rule 9(h) with respect to the following rem-
edies:
(i) maritime attachment and garnishment,
(ii) actions in rem,
(iii) possessory, petitory, and partition actions, and
(iv) actions for exoneration from or limitation of liabil-
ity;
(B) forfeiture actions in rem arising from a federal statute;
and
(C) the procedure in statutory condemnation proceedings
analogous to maritime actions in rem, whether within the admiralty
and maritime jurisdiction or not. Except as otherwise
provided, references in these Supplemental Rules to actions in
rem include such analogous statutory condemnation proceed-
ings.
(2) The Federal Rules of Civil Procedure also apply to the foregoing
proceedings except to the extent that they are inconsistent
with these Supplemental Rules.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 12, 2006, eff.
Dec. 1, 2006.)
Rule B. In Personam Actions: Attachment and Garnishment
(1) WHEN AVAILABLE; COMPLAINT, AFFIDAVIT, JUDICIAL AUTHORIZATION,
AND PROCESS. In an in personam action:
(a) If a defendant is not found within the district when a
verified complaint praying for attachment and the affidavit
required by Rule B(1)(b) are filed, a verified complaint may
contain a prayer for process to attach the defendant's tangible
or intangible personal property--up to the amount sued for--
in the hands of garnishees named in the process.
(b) The plaintiff or the plaintiff's attorney must sign and file
with the complaint an affidavit stating that, to the affiant's
knowledge, or on information and belief, the defendant cannot
be found within the district. The court must review the complaint
and affidavit and, if the conditions of this Rule B appear
to exist, enter an order so stating and authorizing process
of attachment and garnishment. The clerk may issue supplemental
process enforcing the court's order upon application
without further court order.
(c) If the plaintiff or the plaintiff's attorney certifies that
exigent circumstances make court review impracticable, the
clerk must issue the summons and process of attachment and
garnishment. The plaintiff has the burden in any post-attachment
hearing under Rule E(4)(f) to show that exigent circumstances
existed.
135 Rule CFEDERAL RULES OF CIVIL PROCEDURE
(d)(i) If the property is a vessel or tangible property on board
a vessel, the summons, process, and any supplemental process
must be delivered to the marshal for service.
(ii) If the property is other tangible or intangible property,
the summons, process, and any supplemental process must be
delivered to a person or organization authorized to serve it,
who may be (A) a marshal; (B) someone under contract with
the United States; (C) someone specially appointed by the
court for that purpose; or, (D) in an action brought by the
United States, any officer or employee of the United States.
(e) The plaintiff may invoke state-law remedies under Rule
64 for seizure of person or property for the purpose of securing
satisfaction of the judgment.
(2) NOTICE TO DEFENDANT. No default judgment may be entered
except upon proof--which may be by affidavit--that:
(a) the complaint, summons, and process of attachment or
garnishment have been served on the defendant in a manner
authorized by Rule 4;
(b) the plaintiff or the garnishee has mailed to the defendant
the complaint, summons, and process of attachment or garnishment,
using any form of mail requiring a return receipt;
or
(c) the plaintiff or the garnishee has tried diligently to give
notice of the action to the defendant but could not do so.
(3) ANSWER.
(a) By Garnishee. The garnishee shall serve an answer, together
with answers to any interrogatories served with the
complaint, within 20 days after service of process upon the
garnishee. Interrogatories to the garnishee may be served with
the complaint without leave of court. If the garnishee refuses
or neglects to answer on oath as to the debts, credits, or effects
of the defendant in the garnishee's hands, or any interrogatories
concerning such debts, credits, and effects that may
be propounded by the plaintiff, the court may award compulsory
process against the garnishee. If the garnishee admits
any debts, credits, or effects, they shall be held in the garnishee's
hands or paid into the registry of the court, and shall be
held in either case subject to the further order of the court.
(b) By Defendant. The defendant shall serve an answer within
30 days after process has been executed, whether by attachment
of property or service on the garnishee.
(As added Feb. 28, 1966; eff. July 1, 1966; amended Apr. 29, 1985, eff.
Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 17, 2000, eff. Dec.
1, 2000; Apr. 25, 2005, eff. Dec. 1, 2005.)
Rule C. In Rem Actions: Special Provisions
(1) WHEN AVAILABLE. An action in rem may be brought:
(a) To enforce any maritime lien;
(b) Whenever a statute of the United States provides for a
maritime action in rem or a proceeding analogous thereto.
Except as otherwise provided by law a party who may proceed
in rem may also, or in the alternative, proceed in personam
against any person who may be liable.
Statutory provisions exempting vessels or other property owned
or possessed by or operated by or for the United States from arrest
136Rule C FEDERAL RULES OF CIVIL PROCEDURE
or seizure are not affected by this rule. When a statute so provides,
an action against the United States or an instrumentality
thereof may proceed on in rem principles.
(2) COMPLAINT. In an action in rem the complaint must:
(a) be verified;
(b) describe with reasonable particularity the property that
is the subject of the action; and
(c) state that the property is within the district or will be
within the district while the action is pending.
(3) JUDICIAL AUTHORIZATION AND PROCESS.
(a) Arrest Warrant.
(i) The court must review the complaint and any supporting
papers. If the conditions for an in rem action appear
to exist, the court must issue an order directing the
clerk to issue a warrant for the arrest of the vessel or
other property that is the subject of the action.
(ii) If the plaintiff or the plaintiff's attorney certifies
that exigent circumstances make court review impracticable,
the clerk must promptly issue a summons and a warrant
for the arrest of the vessel or other property that is
the subject of the action. The plaintiff has the burden in
any post-arrest hearing under Rule E(4)(f) to show that exigent
circumstances existed.
(b) Service.
(i) If the property that is the subject of the action is a
vessel or tangible property on board a vessel, the warrant
and any supplemental process must be delivered to the
marshal for service.
(ii) If the property that is the subject of the action is
other property, tangible or intangible, the warrant and
any supplemental process must be delivered to a person or
organization authorized to enforce it, who may be: (A) a
marshal; (B) someone under contract with the United
States; (C) someone specially appointed by the court for
that purpose; or, (D) in an action brought by the United
States, any officer or employee of the United States.
(c) Deposit in Court. If the property that is the subject of the
action consists in whole or in part of freight, the proceeds of
property sold, or other intangible property, the clerk must
issue--in addition to the warrant--a summons directing any
person controlling the property to show cause why it should
not be deposited in court to abide the judgment.
(d) Supplemental Process. The clerk may upon application
issue supplemental process to enforce the court's order without
further court order.
(4) NOTICE. No notice other than execution of process is required
when the property that is the subject of the action has been released
under Rule E(5). If the property is not released within 10
days after execution, the plaintiff must promptly--or within the
time that the court allows--give public notice of the action and
arrest in a newspaper designated by court order and having general
circulation in the district, but publication may be terminated
if the property is released before publication is completed. The notice
must specify the time under Rule C(6) to file a statement of
interest in or right against the seized property and to answer.
137 Rule DFEDERAL RULES OF CIVIL PROCEDURE
This rule does not affect the notice requirements in an action to
foreclose a preferred ship mortgage under 46 U.S.C. §§ 31301 et seq.,
as amended.
(5) ANCILLARY PROCESS. In any action in rem in which process
has been served as provided by this rule, if any part of the property
that is the subject of the action has not been brought within
the control of the court because it has been removed or sold, or
because it is intangible property in the hands of a person who has
not been served with process, the court may, on motion, order any
person having possession or control of such property or its proceeds
to show cause why it should not be delivered into the custody
of the marshal or other person or organization having a warrant
for the arrest of the property, or paid into court to abide the
judgment; and, after hearing, the court may enter such judgment
as law and justice may require.
(6) RESPONSIVE PLEADING; INTERROGATORIES.
(a) Statement of Interest; Answer. In an action in rem:
(i) a person who asserts a right of possession or any ownership
interest in the property that is the subject of the
action must file a verified statement of right or interest:
(A) within 10 days after the execution of process, or
(B) within the time that the court allows;
(ii) the statement of right or interest must describe the
interest in the property that supports the person's demand
for its restitution or right to defend the action;
(iii) an agent, bailee, or attorney must state the authority
to file a statement of right or interest on behalf of another;
and
(iv) a person who asserts a right of possession or any
ownership interest must serve an answer within 20 days
after filing the statement of interest or right.
(b) Interrogatories. Interrogatories may be served with the
complaint in an in rem action without leave of court. Answers
to the interrogatories must be served with the answer to the
complaint.
(As added Feb. 28, 1966; eff. July 1, 1966; amended Apr. 29, 1985, eff.
Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec.
1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002;
Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 12, 2006, eff. Dec. 1, 2006; Apr.
23, 2008, eff. Dec. 1, 2008.)
Rule D. Possessory, Petitory, and Partition Actions
In all actions for possession, partition, and to try title maintainable
according to the course of the admiralty practice with respect
to a vessel, in all actions so maintainable with respect to
the possession of cargo or other maritime property, and in all actions
by one or more part owners against the others to obtain security
for the return of the vessel from any voyage undertaken
without their consent, or by one or more part owners against the
others to obtain possession of the vessel for any voyage on giving
security for its safe return, the process shall be by a warrant of
arrest of the vessel, cargo, or other property, and by notice in the
manner provided by Rule B(2) to the adverse party or parties.
(As added Feb. 28, 1966, eff. July 1, 1966.)
138Rule E FEDERAL RULES OF CIVIL PROCEDURE
Rule E. Actions in Rem and Quasi in Rem: General Provisions
(1) APPLICABILITY. Except as otherwise provided, this rule applies
to actions in personam with process of maritime attachment
and garnishment, actions in rem, and petitory, possessory, and
partition actions, supplementing Rules B, C, and D.
(2) COMPLAINT; SECURITY.
(a) Complaint. In actions to which this rule is applicable the
complaint shall state the circumstances from which the claim
arises with such particularity that the defendant or claimant
will be able, without moving for a more definite statement, to
commence an investigation of the facts and to frame a responsive
pleading.
(b) Security for Costs. Subject to the provisions of Rule 54(d)
and of relevant statutes, the court may, on the filing of the
complaint or on the appearance of any defendant, claimant, or
any other party, or at any later time, require the plaintiff, defendant,
claimant, or other party to give security, or additional
security, in such sum as the court shall direct to pay
all costs and expenses that shall be awarded against the party
by any interlocutory order or by the final judgment, or on appeal
by any appellate court.
(3) PROCESS.
(a) In admiralty and maritime proceedings process in rem or
of maritime attachment and garnishment may be served only
within the district.
(b) Issuance and Delivery. Issuance and delivery of process in
rem, or of maritime attachment and garnishment, shall be
held in abeyance if the plaintiff so requests.
(4) EXECUTION OF PROCESS; MARSHAL'S RETURN; CUSTODY OF
PROPERTY; PROCEDURES FOR RELEASE.
(a) In General. Upon issuance and delivery of the process, or,
in the case of summons with process of attachment and garnishment,
when it appears that the defendant cannot be found
within the district, the marshal or other person or organization
having a warrant shall forthwith execute the process in
accordance with this subdivision (4), making due and prompt
return.
(b) Tangible Property. If tangible property is to be attached
or arrested, the marshal or other person or organization having
the warrant shall take it into the marshal's possession for
safe custody. If the character or situation of the property is
such that the taking of actual possession is impracticable, the
marshal or other person executing the process shall affix a
copy thereof to the property in a conspicuous place and leave
a copy of the complaint and process with the person having
possession or the person's agent. In furtherance of the marshal's
custody of any vessel the marshal is authorized to make
a written request to the collector of customs not to grant
clearance to such vessel until notified by the marshal or deputy
marshal or by the clerk that the vessel has been released
in accordance with these rules.
(c) Intangible Property. If intangible property is to be attached
or arrested the marshal or other person or organization
having the warrant shall execute the process by leaving with
139 Rule EFEDERAL RULES OF CIVIL PROCEDURE
2 Repealed by Pub. L. 98­89, § 4(b), Aug. 26, 1983, 97 Stat. 600, section 1 of which enacted Title 46,
Shipping.
the garnishee or other obligor a copy of the complaint and
process requiring the garnishee or other obligor to answer as
provided in Rules B(3)(a) and C(6); or the marshal may accept
for payment into the registry of the court the amount owed to
the extent of the amount claimed by the plaintiff with interest
and costs, in which event the garnishee or other obligor
shall not be required to answer unless alias process shall be
served.
(d) Directions With Respect to Property in Custody. The marshal
or other person or organization having the warrant may
at any time apply to the court for directions with respect to
property that has been attached or arrested, and shall give notice
of such application to any or all of the parties as the
court may direct.
(e) Expenses of Seizing and Keeping Property; Deposit. These
rules do not alter the provisions of Title 28, U.S.C., § 1921, as
amended, relative to the expenses of seizing and keeping property
attached or arrested and to the requirement of deposits
to cover such expenses.
(f) Procedure for Release From Arrest or Attachment. Whenever
property is arrested or attached, any person claiming an interest
in it shall be entitled to a prompt hearing at which the
plaintiff shall be required to show why the arrest or attachment
should not be vacated or other relief granted consistent
with these rules. This subdivision shall have no application to
suits for seamen's wages when process is issued upon a certification
of sufficient cause filed pursuant to Title 46, U.S.C.
§§ 603 and 604 2 or to actions by the United States for forfeitures
for violation of any statute of the United States.
(5) RELEASE OF PROPERTY.
(a) Special Bond. Whenever process of maritime attachment
and garnishment or process in rem is issued the execution of
such process shall be stayed, or the property released, on the
giving of security, to be approved by the court or clerk, or by
stipulation of the parties, conditioned to answer the judgment
of the court or of any appellate court. The parties may stipulate
the amount and nature of such security. In the event of
the inability or refusal of the parties so to stipulate the court
shall fix the principal sum of the bond or stipulation at an
amount sufficient to cover the amount of the plaintiff's claim
fairly stated with accrued interest and costs; but the principal
sum shall in no event exceed (i) twice the amount of the plaintiff's
claim or (ii) the value of the property on due appraisement,
whichever is smaller. The bond or stipulation shall be
conditioned for the payment of the principal sum and interest
thereon at 6 per cent per annum.
(b) General Bond. The owner of any vessel may file a general
bond or stipulation, with sufficient surety, to be approved by
the court, conditioned to answer the judgment of such court
in all or any actions that may be brought thereafter in such
court in which the vessel is attached or arrested. Thereupon
the execution of all such process against such vessel shall be
140Rule E FEDERAL RULES OF CIVIL PROCEDURE
stayed so long as the amount secured by such bond or stipulation
is at least double the aggregate amount claimed by plaintiffs
in all actions begun and pending in which such vessel has
been attached or arrested. Judgments and remedies may be
had on such bond or stipulation as if a special bond or stipulation
had been filed in each of such actions. The district court
may make necessary orders to carry this rule into effect, particularly
as to the giving of proper notice of any action
against or attachment of a vessel for which a general bond has
been filed. Such bond or stipulation shall be indorsed by the
clerk with a minute of the actions wherein process is so
stayed. Further security may be required by the court at any
time.
If a special bond or stipulation is given in a particular case,
the liability on the general bond or stipulation shall cease as
to that case.
(c) Release by Consent or Stipulation; Order of Court or Clerk;
Costs. Any vessel, cargo, or other property in the custody of
the marshal or other person or organization having the warrant
may be released forthwith upon the marshal's acceptance
and approval of a stipulation, bond, or other security, signed
by the party on whose behalf the property is detained or the
party's attorney and expressly authorizing such release, if all
costs and charges of the court and its officers shall have first
been paid. Otherwise no property in the custody of the marshal,
other person or organization having the warrant, or
other officer of the court shall be released without an order of
the court; but such order may be entered as of course by the
clerk, upon the giving of approved security as provided by law
and these rules, or upon the dismissal or discontinuance of the
action; but the marshal or other person or organization having
the warrant shall not deliver any property so released until
the costs and charges of the officers of the court shall first
have been paid.
(d) Possessory, Petitory, and Partition Actions. The foregoing
provisions of this subdivision (5) do not apply to petitory, possessory,
and partition actions. In such cases the property arrested
shall be released only by order of the court, on such
terms and conditions and on the giving of such security as the
court may require.
(6) REDUCTION OR IMPAIRMENT OF SECURITY. Whenever security is
taken the court may, on motion and hearing, for good cause
shown, reduce the amount of security given; and if the surety
shall be or become insufficient, new or additional sureties may be
required on motion and hearing.
(7) SECURITY ON COUNTERCLAIM.
(a) When a person who has given security for damages in the
original action asserts a counterclaim that arises from the
transaction or occurrence that is the subject of the original
action, a plaintiff for whose benefit the security has been
given must give security for damages demanded in the counterclaim
unless the court, for cause shown, directs otherwise.
Proceedings on the original claim must be stayed until this security
is given, unless the court directs otherwise.
141 Rule FFEDERAL RULES OF CIVIL PROCEDURE
(b) The plaintiff is required to give security under Rule
E(7)(a) when the United States or its corporate instrumentality
counterclaims and would have been required to give security
to respond in damages if a private party but is relieved by
law from giving security.
(8) RESTRICTED APPEARANCE. An appearance to defend against an
admiralty and maritime claim with respect to which there has issued
process in rem, or process of attachment and garnishment,
may be expressly restricted to the defense of such claim, and in
that event is not an appearance for the purposes of any other
claim with respect to which such process is not available or has
not been served.
(9) DISPOSITION OF PROPERTY; SALES.
(a) Interlocutory Sales; Delivery.
(i) On application of a party, the marshal, or other person
having custody of the property, the court may order
all or part of the property sold--with the sales proceeds, or
as much of them as will satisfy the judgment, paid into
court to await further orders of the court--if:
(A) the attached or arrested property is perishable,
or liable to deterioration, decay, or injury by being detained
in custody pending the action;
(B) the expense of keeping the property is excessive
or disproportionate; or
(C) there is an unreasonable delay in securing release
of the property.
(ii) In the circumstances described in Rule E(9)(a)(i), the
court, on motion by a defendant or a person filing a statement
of interest or right under Rule C(6), may order that
the property, rather than being sold, be delivered to the
movant upon giving security under these rules.
(b) Sales, Proceeds. All sales of property shall be made by the
marshal or a deputy marshal, or by other person or organization
having the warrant, or by any other person assigned by
the court where the marshal or other person or organization
having the warrant is a party in interest; and the proceeds of
sale shall be forthwith paid into the registry of the court to
be disposed of according to law.
(10) PRESERVATION OF PROPERTY. When the owner or another person
remains in possession of property attached or arrested under
the provisions of Rule E(4)(b) that permit execution of process
without taking actual possession, the court, on a party's motion
or on its own, may enter any order necessary to preserve the property
and to prevent its removal.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 29, 1985, eff.
Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec.
1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006.)
Rule F. Limitation of Liability
(1) TIME FOR FILING COMPLAINT; SECURITY. Not later than six
months after receipt of a claim in writing, any vessel owner may
file a complaint in the appropriate district court, as provided in
subdivision (9) of this rule, for limitation of liability pursuant to
statute. The owner (a) shall deposit with the court, for the benefit
142Rule F FEDERAL RULES OF CIVIL PROCEDURE
of claimants, a sum equal to the amount or value of the owner's
interest in the vessel and pending freight, or approved security
therefor, and in addition such sums, or approved security therefor,
as the court may from time to time fix as necessary to carry out
the provisions of the statutes as amended; or (b) at the owner's option
shall transfer to a trustee to be appointed by the court, for
the benefit of claimants, the owner's interest in the vessel and
pending freight, together with such sums, or approved security
therefor, as the court may from time to time fix as necessary to
carry out the provisions of the statutes as amended. The plaintiff
shall also give security for costs and, if the plaintiff elects to give
security, for interest at the rate of 6 percent per annum from the
date of the security.
(2) COMPLAINT. The complaint shall set forth the facts on the
basis of which the right to limit liability is asserted and all facts
necessary to enable the court to determine the amount to which
the owner's liability shall be limited. The complaint may demand
exoneration from as well as limitation of liability. It shall state
the voyage if any, on which the demands sought to be limited
arose, with the date and place of its termination; the amount of
all demands including all unsatisfied liens or claims of lien, in
contract or in tort or otherwise, arising on that voyage, so far as
known to the plaintiff, and what actions and proceedings, if any,
are pending thereon; whether the vessel was damaged, lost, or
abandoned, and, if so, when and where; the value of the vessel at
the close of the voyage or, in case of wreck, the value of her
wreckage, strippings, or proceeds, if any, and where and in whose
possession they are; and the amount of any pending freight recovered
or recoverable. If the plaintiff elects to transfer the plaintiff's
interest in the vessel to a trustee, the complaint must further
show any prior paramount liens thereon, and what voyages or
trips, if any, she has made since the voyage or trip on which the
claims sought to be limited arose, and any existing liens arising
upon any such subsequent voyage or trip, with the amounts and
causes thereof, and the names and addresses of the lienors, so far
as known; and whether the vessel sustained any injury upon or by
reason of such subsequent voyage or trip.
(3) CLAIMS AGAINST OWNER; INJUNCTION. Upon compliance by the
owner with the requirements of subdivision (1) of this rule all
claims and proceedings against the owner or the owner's property
with respect to the matter in question shall cease. On application
of the plaintiff the court shall enjoin the further prosecution of
any action or proceeding against the plaintiff or the plaintiff's
property with respect to any claim subject to limitation in the ac-
tion.
(4) NOTICE TO CLAIMANTS. Upon the owner's compliance with subdivision
(1) of this rule the court shall issue a notice to all persons
asserting claims with respect to which the complaint seeks limitation,
admonishing them to file their respective claims with the
clerk of the court and to serve on the attorneys for the plaintiff
a copy thereof on or before a date to be named in the notice. The
date so fixed shall not be less than 30 days after issuance of the
notice. For cause shown, the court may enlarge the time within
which claims may be filed. The notice shall be published in such
newspaper or newspapers as the court may direct once a week for
143 Rule FFEDERAL RULES OF CIVIL PROCEDURE
four successive weeks prior to the date fixed for the filing of
claims. The plaintiff not later than the day of second publication
shall also mail a copy of the notice to every person known to have
made any claim against the vessel or the plaintiff arising out of
the voyage or trip on which the claims sought to be limited arose.
In cases involving death a copy of such notice shall be mailed to
the decedent at the decedent's last known address, and also to any
person who shall be known to have made any claim on account of
such death.
(5) CLAIMS AND ANSWER. Claims shall be filed and served on or
before the date specified in the notice provided for in subdivision
(4) of this rule. Each claim shall specify the facts upon which the
claimant relies in support of the claim, the items thereof, and the
dates on which the same accrued. If a claimant desires to contest
either the right to exoneration from or the right to limitation of
liability the claimant shall file and serve an answer to the complaint
unless the claim has included an answer.
(6) INFORMATION TO BE GIVEN CLAIMANTS. Within 30 days after
the date specified in the notice for filing claims, or within such
time as the court thereafter may allow, the plaintiff shall mail to
the attorney for each claimant (or if the claimant has no attorney
to the claimant) a list setting forth (a) the name of each claimant,
(b) the name and address of the claimant's attorney (if the claimant
is known to have one), (c) the nature of the claim, i.e., whether
property loss, property damage, death, personal injury etc., and
(d) the amount thereof.
(7) INSUFFICIENCY OF FUND OR SECURITY. Any claimant may by
motion demand that the funds deposited in court or the security
given by the plaintiff be increased on the ground that they are
less than the value of the plaintiff's interest in the vessel and
pending freight. Thereupon the court shall cause due appraisement
to be made of the value of the plaintiff's interest in the vessel
and pending freight; and if the court finds that the deposit or
security is either insufficient or excessive it shall order its increase
or reduction. In like manner any claimant may demand
that the deposit or security be increased on the ground that it is
insufficient to carry out the provisions of the statutes relating to
claims in respect of loss of life or bodily injury; and, after notice
and hearing, the court may similarly order that the deposit or security
be increased or reduced.
(8) OBJECTIONS TO CLAIMS: DISTRIBUTION OF FUND. Any interested
party may question or controvert any claim without filing an objection
thereto. Upon determination of liability the fund deposited
or secured, or the proceeds of the vessel and pending freight,
shall be divided pro rata, subject to all relevant provisions of law,
among the several claimants in proportion to the amounts of their
respective claims, duly proved, saving, however, to all parties any
priority to which they may be legally entitled.
(9) VENUE; TRANSFER. The complaint shall be filed in any district
in which the vessel has been attached or arrested to answer
for any claim with respect to which the plaintiff seeks to limit liability;
or, if the vessel has not been attached or arrested, then in
any district in which the owner has been sued with respect to any
such claim. When the vessel has not been attached or arrested to
answer the matters aforesaid, and suit has not been commenced
144Rule G FEDERAL RULES OF CIVIL PROCEDURE
against the owner, the proceedings may be had in the district in
which the vessel may be, but if the vessel is not within any district
and no suit has been commenced in any district, then the
complaint may be filed in any district. For the convenience of
parties and witnesses, in the interest of justice, the court may
transfer the action to any district; if venue is wrongly laid the
court shall dismiss or, if it be in the interest of justice, transfer
the action to any district in which it could have been brought. If
the vessel shall have been sold, the proceeds shall represent the
vessel for the purposes of these rules.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987, eff.
Aug. 1, 1987.)
Rule G. Forfeiture Actions In Rem
(1) SCOPE. This rule governs a forfeiture action in rem arising
from a federal statute. To the extent that this rule does not address
an issue, Supplemental Rules C and E and the Federal Rules
of Civil Procedure also apply.
(2) COMPLAINT. The complaint must:
(a) be verified;
(b) state the grounds for subject-matter jurisdiction, in rem
jurisdiction over the defendant property, and venue;
(c) describe the property with reasonable particularity;
(d) if the property is tangible, state its location when any
seizure occurred and--if different--its location when the action
is filed;
(e) identify the statute under which the forfeiture action is
brought; and
(f) state sufficiently detailed facts to support a reasonable
belief that the government will be able to meet its burden of
proof at trial.
(3) JUDICIAL AUTHORIZATION AND PROCESS.
(a) Real Property. If the defendant is real property, the government
must proceed under 18 U.S.C. § 985.
(b) Other Property; Arrest Warrant. If the defendant is not real
property:
(i) the clerk must issue a warrant to arrest the property
if it is in the government's possession, custody, or control;
(ii) the court--on finding probable cause--must issue a
warrant to arrest the property if it is not in the government's
possession, custody, or control and is not subject to
a judicial restraining order; and
(iii) a warrant is not necessary if the property is subject
to a judicial restraining order.
(c) Execution of Process.
(i) The warrant and any supplemental process must be
delivered to a person or organization authorized to execute
it, who may be: (A) a marshal or any other United States
officer or employee; (B) someone under contact with the
United States; or (C) someone specially appointed by the
court for that purpose.
(ii) The authorized person or organization must execute
the warrant and any supplemental process on property in
the United States as soon as practicable unless:
145 Rule GFEDERAL RULES OF CIVIL PROCEDURE
(A) the property is in the government's possession,
custody, or control; or
(B) the court orders a different time when the complaint
is under seal, the action is stayed before the
warrant and supplemental process are executed, or the
court finds other good cause.
(iii) The warrant and any supplemental process may be
executed within the district or, when authorized by statute,
outside the district.
(iv) If executing a warrant on property outside the
United States is required, the warrant may be transmitted
to an appropriate authority for serving process where the
property is located.
(4) NOTICE.
(a) Notice by Publication.
(i) When Publication Is Required. A judgment of forfeiture
may be entered only if the government has published
notice of the action within a reasonable time after filing
the complaint or at a time the court orders. But notice
need not be published if:
(A) the defendant property is worth less than $1,000
and direct notice is sent under Rule G(4)(b) to every
person the government can reasonably identify as a potential
claimant; or
(B) the court finds that the cost of publication exceeds
the property's value and that other means of notice
would satisfy due process.
(ii) Content of the Notice. Unless the court orders otherwise,
the notice must:
(A) describe the property with reasonable particular-
ity;
(B) state the times under Rule G(5) to file a claim
and to answer; and
(C) name the government attorney to be served with
the claim and answer.
(iii) Frequency of Publication. Published notice must ap-
pear:
(A) once a week for three consecutive weeks; or
(B) only once if, before the action was filed, notice of
nonjudicial forfeiture of the same property was published
on an official internet government forfeiture
site for at least 30 consecutive days, or in a newspaper
of general circulation for three consecutive weeks in a
district where publication is authorized under Rule
G(4)(a)(iv).
(iv) Means of Publication. The government should select
from the following options a means of publication reasonably
calculated to notify potential claimants of the action:
(A) if the property is in the United States, publication
in a newspaper generally circulated in the district
where the action is filed, where the property was
seized, or where property that was not seized is lo-
cated;
146Rule G FEDERAL RULES OF CIVIL PROCEDURE
(B) if the property is outside the United States, publication
in a newspaper generally circulated in a district
where the action is filed, in a newspaper generally
circulated in the country where the property is located,
or in legal notices published and generally circulated
in the country where the property is located;
or
(C) instead of (A) or (B), posting a notice on an official
internet government forfeiture site for at least 30
consecutive days.
(b) Notice to Known Potential Claimants.
(i) Direct Notice Required. The government must send
notice of the action and a copy of the complaint to any
person who reasonably appears to be a potential claimant
on the facts known to the government before the end of
the time for filing a claim under Rule G(5)(a)(ii)(B).
(ii) Content of the Notice. The notice must state:
(A) the date when the notice is sent;
(B) a deadline for filing a claim, at least 35 days after
the notice is sent;
(C) that an answer or a motion under Rule 12 must
be filed no later than 20 days after filing the claim; and
(D) the name of the government attorney to be
served with the claim and answer.
(iii) Sending Notice.
(A) The notice must be sent by means reasonably calculated
to reach the potential claimant.
(B) Notice may be sent to the potential claimant or
to the attorney representing the potential claimant
with respect to the seizure of the property or in a related
investigation, administrative forfeiture proceeding,
or criminal case.
(C) Notice sent to a potential claimant who is incarcerated
must be sent to the place of incarceration.
(D) Notice to a person arrested in connection with an
offense giving rise to the forfeiture who is not incarcerated
when notice is sent may be sent to the address
that person last gave to the agency that arrested or released
the person.
(E) Notice to a person from whom the property was
seized who is not incarcerated when notice is sent may
be sent to the last address that person gave to the
agency that seized the property.
(iv) When Notice Is Sent. Notice by the following means
is sent on the date when it is placed in the mail, delivered
to a commercial carrier, or sent by electronic mail.
(v) Actual Notice. A potential claimant who had actual
notice of a forfeiture action may not oppose or seek relief
from forfeiture because of the government's failure to send
the required notice.
(5) RESPONSIVE PLEADINGS.
(a) Filing a Claim.
(i) A person who asserts an interest in the defendant
property may contest the forfeiture by filing a claim in
the court where the action is pending. The claim must:
147 Rule GFEDERAL RULES OF CIVIL PROCEDURE
(A) identify the specific property claimed;
(B) identify the claimant and state the claimant's interest
in the property;
(C) be signed by the claimant under penalty of perjury;
and
(D) be served on the government attorney designated
under Rule G(4)(a)(ii)(C) or (b)(ii)(D).
(ii) Unless the court for good cause sets a different time,
the claim must be filed:
(A) by the time stated in a direct notice sent under
Rule G(4)(b);
(B) if notice was published but direct notice was not
sent to the claimant or the claimant's attorney, no
later than 30 days after final publication of newspaper
notice or legal notice under Rule G(4)(a) or no later
than 60 days after the first day of publication on an official
internet government forfeiture site; or
(C) if notice was not published and direct notice was
not sent to the claimant or the claimant's attorney:
(1) if the property was in the government's possession,
custody, or control when the complaint
was filed, no later than 60 days after the filing, not
counting any time when the complaint was under
seal or when the action was stayed before execution
of a warrant issued under Rule G(3)(b); or
(2) if the property was not in the government's
possession, custody, or control when the complaint
was filed, no later than 60 days after the government
complied with 18 U.S.C. § 985(c) as to real
property, or 60 days after process was executed on
the property under Rule G(3).
(iii) A claim filed by a person asserting an interest as a
bailee must identify the bailor, and if filed on the bailor's
behalf must state the authority to do so.
(b) Answer. A claimant must serve and file an answer to the
complaint or a motion under Rule 12 within 20 days after filing
the claim. A claimant waives an objection to in rem jurisdiction
or to venue if the objection is not made by motion or
stated in the answer.
(6) SPECIAL INTERROGATORIES.
(a) Time and Scope. The government may serve special interrogatories
limited to the claimant's identity and relationship
to the defendant property without the court's leave at any
time after the claim is filed and before discovery is closed. But
if the claimant serves a motion to dismiss the action, the government
must serve the interrogatories within 20 days after
the motion is served.
(b) Answers or Objections. Answers or objections to these interrogatories
must be served within 20 days after the interrogatories
are served.
(c) Government's Response Deferred. The government need not
respond to a claimant's motion to dismiss the action under
Rule G(8)(b) until 20 days after the claimant has answered
these interrogatories.
148Rule G FEDERAL RULES OF CIVIL PROCEDURE
(7) PRESERVING, PREVENTING CRIMINAL USE, AND DISPOSING OF
PROPERTY; SALES.
(a) Preserving and Preventing Criminal Use of Property. When
the government does not have actual possession of the defendant
property the court, on motion or on its own, may enter
any order necessary to preserve the property, to prevent its removal
or encumbrance, or to prevent its use in a criminal of-
fense.
(b) Interlocutory Sale or Delivery.
(i) Order to Sell. On motion by a party or a person having
custody of the property, the court may order all or
part of the property sold if:
(A) the property is perishable or at risk of deterioration,
decay, or injury by being detained in custody
pending the action;
(B) the expense of keeping the property is excessive
or is disproportionate to its fair market value;
(C) the property is subject to a mortgage or to taxes
on which the owner is in default; or
(D) the court finds other good cause.
(ii) Who Makes the Sale. A sale must be made by a
United States agency that has authority to sell the property,
by the agency's contractor, or by any person the
court designates.
(iii) Sale Procedures. The sale is governed by 28 U.S.C.
§§ 2001, 2002, and 2004, unless all parties, with the court's
approval, agree to the sale, aspects of the sale, or different
procedures.
(iv) Sale Proceeds. Sale proceeds are a substitute res
subject to forfeiture in place of the property that was sold.
The proceeds must be held in an interest-bearing account
maintained by the United States pending the conclusion of
the forfeiture action.
(v) Delivery on a Claimant's Motion. The court may
order that the property be delivered to the claimant pending
the conclusion of the action if the claimant shows circumstances
that would permit sale under Rule G(7)(b)(i)
and gives security under these rules.
(c) Disposing of Forfeited Property. Upon entry of a forfeiture
judgment, the property or proceeds from selling the property
must be disposed of as provided by law.
(8) MOTIONS.
(a) Motion To Suppress Use of the Property as Evidence. If the
defendant property was seized, a party with standing to contest
the lawfulness of the seizure may move to suppress use of
the property as evidence. Suppression does not affect forfeiture
of the property based on independently derived evidence.
(b) Motion To Dismiss the Action.
(i) A claimant who establishes standing to contest forfeiture
may move to dismiss the action under Rule 12(b).
(ii) In an action governed by 18 U.S.C. § 983(a)(3)(D) the
complaint may not be dismissed on the ground that the
government did not have adequate evidence at the time
the complaint was filed to establish the forfeitability of
the property. The sufficiency of the complaint is governed
by Rule G(2).
149 Rule GFEDERAL RULES OF CIVIL PROCEDURE
(c) Motion To Strike a Claim or Answer.
(i) At any time before trial, the government may move
to strike a claim or answer:
(A) for failing to comply with Rule G(5) or (6), or
(B) because the claimant lacks standing.
(ii) The motion:
(A) must be decided before any motion by the claimant
to dismiss the action; and
(B) may be presented as a motion for judgment on
the pleadings or as a motion to determine after a hearing
or by summary judgment whether the claimant can
carry the burden of establishing standing by a preponderance
of the evidence.
(d) Petition To Release Property.
(i) If a United States agency or an agency's contractor
holds property for judicial or nonjudicial forfeiture under
a statute governed by 18 U.S.C. § 983(f), a person who has
filed a claim to the property may petition for its release
under § 983(f).
(ii) If a petition for release is filed before a judicial forfeiture
action is filed against the property, the petition
may be filed either in the district where the property was
seized or in the district where a warrant to seize the property
issued. If a judicial forfeiture action against the property
is later filed in another district--or if the government
shows that the action will be filed in another district--the
petition may be transferred to that district under 28 U.S.C.
§ 1404.
(e) Excessive Fines. A claimant may seek to mitigate a forfeiture
under the Excessive Fines Clause of the Eighth Amendment
by motion for summary judgment or by motion made
after entry of a forfeiture judgment if:
(i) the claimant has pleaded the defense under Rule 8;
and
(ii) the parties have had the opportunity to conduct civil
discovery on the defense.
(9) TRIAL. Trial is to the court unless any party demands trial
by jury under Rule 38.
(As added Apr. 12, 2006, eff. Dec. 1, 2006.)