US (United States) Code. Title 28. Appendix 2

Codificación normativa de EEUU (Estados Unidos). Legislación federal estadounidense # Federal rules of civil procedure

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APPENDIX OF FORMS

Form

1. Summons.

1A. Notice of Lawsuit and Request for Waiver of Service of

Summons.

1B. Waiver of Service of Summons.

2. Allegation of Jurisdiction.

3. Complaint on a Promissory Note.

4. Complaint on an Account.

5. Complaint for Goods Sold and Delivered.

6. Complaint for Money Lent.

7. Complaint for Money Paid by Mistake.

8. Complaint for Money Had and Received.

9. Complaint for Negligence.

10. Complaint for Negligence Where Plaintiff Is Unable To

Determine Definitely Whether the Person Responsible

Is C.D. or E.F. or Whether Both Are Responsible and

Where His Evidence May Justify a Finding of

Wilfulness or of Recklessness or of Negligence.

11. Complaint for Conversion.

12. Complaint for Specific Performance of Contract To

Convey Land.

13. Complaint on Claim for Debt and To Set Aside

Fraudulent Conveyance Under Rule 18(b).

14. Complaint for Negligence Under Federal Employer's

Liability Act.

15. Complaint for Damages Under Merchant Marine Act.

16. Complaint for Infringement of Patent.

17. Complaint for Infringement of Copyright and Unfair

Competition.

18. Complaint for Interpleader and Declaratory Relief.

[18-A. Abrogated.]

19. Motion To Dismiss, Presenting Defenses of Failure To

State a Claim, of Lack of Service of Process, of

Improper Venue, and of Lack of Jurisdiction Under

Rule 12(b).

20. Answer Presenting Defenses Under Rule 12(b).

21. Answer to Complaint Set Forth in Form 8, With

Counterclaim for Interpleader.

[22. Eliminated.]

22-A. Summons and Complaint Against Third-Party Defendant.

22-B. Motion To Bring in Third-Party Defendant.

23. Motion To Intervene as a Defendant under Rule 24.

24. Request for Production of Documents, etc., Under Rule

34.

25. Request for Admission Under Rule 36.

26. Allegation of Reason for Omitting Party.

[27. Abrogated.]

28. Notice: Condemnation.

29. Complaint: Condemnation.

30. Suggestion of Death Upon the Record Under Rule

25(a)(1).

31. Judgment on Jury Verdict.

32. Judgment on Decision by the Court.

33. Notice of Availability of a Magistrate Judge to

Exercise Jurisdiction.

34. Consent to Exercise of Jurisdiction by a United States

Magistrate Judge.

34A. Order of Reference.

35. Report of Parties' Planning Meeting.

SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

Rule

A. Scope of Rules.

B. In Personam Actions: Attachment and Garnishment.

(1) When Available; Complaint, Affidavit, Judicial

Authorization, and Process.

(2) Notice to Defendant.

(3) Answer.

(a) By Garnishee.

(b) By Defendant.

C. In Rem Actions: Special Provisions.

(1) When Available.

(2) Complaint.

(3) Judicial Authorization and Process.

(a) Arrest Warrant.

(b) Service.

(c) Deposit in Court.

(d) Supplemental Process.

(4) Notice.

(5) Ancillary Process.

(6) Responsive Pleading; Interrogatories.

(a) Civil Forfeiture.

(b) Maritime Arrests and Other Proceedings.

(c) Interrogatories.

D. Possessory, Petitory, and Partition Actions.

E. Actions in Rem and Quasi in Rem: General Provisions.

(1) Applicability.

(2) Complaint; Security.

(a) Complaint.

(b) Security for Costs.

(3) Process.

(4) Execution of Process; Marshal's Return; Custody

of Property; Procedures for Release.

(a) In General.

(b) Tangible Property.

(c) Intangible Property.

(d) Directions with Respect to Property in

Custody.

(e) Expenses of Seizing and Keeping Property;

Deposit.

(f) Procedure for Release from Arrest or

Attachment.

(5) Release of Property.

(a) Special Bond.

(b) General Bond.

(c) Release by Consent, or Stipulation; Order of

Court or Clerk; Costs.

(d) Possessory, Petitory, and Partition Actions.

(6) Reduction or Impairment of Security.

(7) Security on Counterclaim.

(8) Restricted Appearance.

(9) Disposition of Property; Sales.

(a) Actions for Forfeitures.

(b) Interlocutory Sales; Delivery.

(c) Sales; Proceeds.

(10) Preservation of Property.

F. Limitation of Liability.

(1) Time for Filing Complaint; Security.

(2) Complaint.

(3) Claims Against Owner; Injunction.

(4) Notice to Claimants.

(5) Claims and Answer.

(6) Information To Be Given Claimants.

(7) Insufficiency of Fund or Security.

(8) Objections to Claims: Distribution of Fund.

(9) Venue; Transfer.

The Federal Rules of Civil Procedure supplant the Equity Rules

since in general they cover the field now covered by the Equity

Rules and the Conformity Act (former section 724 of this title).

This table shows the Equity Rules to which references are made in

the notes to the Federal Rules of Civil Procedure.

Equity Rules Federal Rules

of Civil

Procedure

--------------------------------------------------------------------

1 77

2 77

3 79

4 77

5 77

6 78

7 4, 70

8 6, 70

9 70

10 18, 54

11 71

12 3, 4, 5, 12, 55

13 4

14 4

15 4, 45

16 6, 55

17 55

18 7, 8

19 1, 15, 61

20 12

21 11, 12

22 1

23 1, 39

24 11

25 8, 9, 10, 19

26 18, 20, 82

27 23

28 15

29 7, 12, 42, 55

30 8, 13, 82

31 7, 8, 12, 55

32 15

33 7, 12

34 15

35 15

36 11

37 17, 19, 20, 24

38 23

39 19

40 20

41 17

42 19, 20

43 12, 21

44 12, 21

45 25

46 43, 61

47 26

48 43

49 53

50 30, 80

51 30, 53

52 45, 53

53 53

54 26

55 30

56 40

57 40

58 26, 33, 34, 36

59 53

60 53

61 53

61 1/2 53

62 53

63 53

64 26

65 53

66 53

67 53

68 53

69 59

70 17

70 1/2 52

71 54

72 60, 61

73 65

74 62

75 75

76 75

77 76

78 43

79 83

80 6

81 86

--------------------------------------------------------------------

-End-

-CITE-

28 USC APPENDIX I. SCOPE OF RULES - ONE FORM OF

ACTION 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

I. SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-

I. SCOPE OF RULES - ONE FORM OF ACTION

-End-

-CITE-

28 USC APPENDIX Rule 1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

I. SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-

Rule 1. Scope and Purpose of Rules

-STATUTE-

These rules govern the procedure in the United States district

courts in all suits of a civil nature whether cognizable as cases

at law or in equity or in admiralty, with the exceptions stated in

Rule 81. They shall be construed and administered to secure the

just, speedy, and inexpensive determination of every action.

-SOURCE-

(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff.

July 1, 1966; Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

1. Rule 81 states certain limitations in the application of these

rules to enumerated special proceedings.

2. The expression "district courts of the United States"

appearing in the statute authorizing the Supreme Court of the

United States to promulgate rules of civil procedure does not

include the district courts held in the Territories and insular

possessions. See Mookini et al. v. United States, 303 U.S. 201, 58

S.Ct. 543, 82 L.Ed. 748 (1938).

3. These rules are drawn under the authority of the act of June

19, 1934, U.S.C., Title 28, Sec. 723b [see 2072] (Rules in actions

at law; Supreme Court authorized to make), and Sec. 723c [see 2072]

(Union of equity and action at law rules; power of Supreme Court)

and also other grants of rule making power to the Court. See Clark

and Moore, A New Federal Civil Procedure - I. The Background, 44

Yale L.J. 387, 391 (1935). Under Sec. 723b after the rules have

taken effect all laws in conflict therewith are of no further force

or effect. In accordance with Sec. 723c the Court has united the

general rules prescribed for cases in equity with those in actions

at law so as to secure one form of civil action and procedure for

both. See Rule 2 (One Form of Action). For the former practice in

equity and at law see U.S.C., Title 28, Secs. 723 and 730 [see 2071

et seq.] (conferring power on the Supreme Court to make rules of

practice in equity) and the [former] Equity Rules promulgated

thereunder; U.S.C., Title 28, [former] Sec. 724 (Conformity act):

[former] Equity Rule 22 (Action at Law Erroneously Begun as Suit in

Equity - Transfer); [former] Equity Rule 23 (Matters Ordinarily

Determinable at Law When Arising in Suit in Equity to be Disposed

of Therein); U.S.C., Title 28, [former] Secs. 397 (Amendments to

pleadings when case brought to wrong side of court), and 398

(Equitable defenses and equitable relief in actions at law).

4. With the second sentence compare U.S.C., Title 28, [former]

Secs. 777 (Defects of form; amendments), 767 (Amendment of

process); [former] Equity Rule 19 (Amendments Generally).

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

The change in nomenclature conforms to the official designation

of district courts in Title 28, U.S.C., Sec. 132(a).

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

This is the fundamental change necessary to effect unification of

the civil and admiralty procedure. Just as the 1938 rules abolished

the distinction between actions at law and suits in equity, this

change would abolish the distinction between civil actions and

suits in admiralty. See also Rule 81.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

The purpose of this revision, adding the words "and administered"

to the second sentence, is to recognize the affirmative duty of the

court to exercise the authority conferred by these rules to ensure

that civil litigation is resolved not only fairly, but also without

undue cost or delay. As officers of the court, attorneys share this

responsibility with the judge to whom the case is assigned.

-End-

-CITE-

28 USC APPENDIX Rule 2 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

I. SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-

Rule 2. One Form of Action

-STATUTE-

There shall be one form of action to be known as "civil action."

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

1. This rule modifies U.S.C., Title 28, [former] Sec. 384 (Suits

in equity, when not sustainable). U.S.C., Title 28, Secs. 723 and

730 [see 2071 et seq.] (conferring power on the Supreme Court to

make rules of practice in equity), are unaffected insofar as they

relate to the rule making power in admiralty. These sections,

together with Sec. 723b [see 2072] (Rules in actions at law;

Supreme Court authorized to make) are continued insofar as they are

not inconsistent with Sec. 723c [see 2072] (Union of equity and

action at law rules; power of Supreme Court). See Note 3 to Rule 1.

U.S.C., Title 28, [former] Secs. 724 (Conformity act), 397

(Amendments to pleadings when case brought to wrong side of court)

and 398 (Equitable defenses and equitable relief in actions at law)

are superseded.

2. Reference to actions at law or suits in equity in all statutes

should now be treated as referring to the civil action prescribed

in these rules.

3. This rule follows in substance the usual introductory

statements to code practices which provide for a single action and

mode of procedure, with abolition of forms of action and procedural

distinctions. Representative statutes are N.Y. Code 1848 (Laws

1848, ch. 379) Sec. 62; N.Y.C.P.A. (1937) Sec. 8; Calif.Code

Civ.Proc. (Deering, 1937) Sec. 307; 2 Minn.Stat. (Mason, 1927) Sec.

9164; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Secs. 153, 255.

-End-

-CITE-

28 USC APPENDIX II. COMMENCEMENT OF ACTION;

SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-End-

-CITE-

28 USC APPENDIX Rule 3 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

Rule 3. Commencement of Action

-STATUTE-

A civil action is commenced by filing a complaint with the court.

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

1. Rule 5(e) defines what constitutes filing with the court.

2. This rule governs the commencement of all actions, including

those brought by or against the United States or an officer or

agency thereof, regardless of whether service is to be made

personally pursuant to Rule 4(d), or otherwise pursuant to Rule

4(e).

3. With this rule compare [former] Equity Rule 12 (Issue of

Subpoena - Time for Answer) and the following statutes (and other

similar statutes) which provide a similar method for commencing an

action:

U.S.C., Title 28:

Sec. 45 [former] (District courts; practice and procedure in

certain cases under interstate commerce laws).

Sec. 762 [see 1402] (Petition in suit against United States).

Sec. 766 [see 2409] (Partition suits where United States is tenant

in common or joint tenant).

4. This rule provides that the first step in an action is the

filing of the complaint. Under Rule 4(a) this is to be followed

forthwith by issuance of a summons and its delivery to an officer

for service. Other rules providing for dismissal for failure to

prosecute suggest a method available to attack unreasonable delay

in prosecuting an action after it has been commenced. When a

Federal or State statute of limitations is pleaded as a defense, a

question may arise under this rule whether the mere filing of the

complaint stops the running of the statute, or whether any further

step is required, such as, service of the summons and complaint or

their delivery to the marshal for service. The answer to this

question may depend on whether it is competent for the Supreme

Court, exercising the power to make rules of procedure without

affecting substantive rights, to vary the operation of statutes of

limitations. The requirement of Rule 4(a) that the clerk shall

forthwith issue the summons and deliver it to the marshal for

service will reduce the chances of such a question arising.

-End-

-CITE-

28 USC APPENDIX Rule 4 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

Rule 4. Summons

-STATUTE-

(a) Form. The summons shall be signed by the clerk, bear the seal

of the court, identify the court and the parties, be directed to

the defendant, and state the name and address of the plaintiff's

attorney or, if unrepresented, of the plaintiff. It shall also

state the time within which the defendant must appear and defend,

and notify the defendant that failure to do so will result in a

judgment by default against the defendant for the relief demanded

in the complaint. The court may allow a summons to be amended.

(b) Issuance. Upon or after filing the complaint, the plaintiff

may present a summons to the clerk for signature and seal. If the

summons is in proper form, the clerk shall sign, seal, and issue it

to the plaintiff for service on the defendant. A summons, or a copy

of the summons if addressed to multiple defendants, shall be issued

for each defendant to be served.

(c) Service with Complaint; by Whom Made.

(1) A summons shall be served together with a copy of the

complaint. The plaintiff is responsible for service of a summons

and complaint within the time allowed under subdivision (m) and

shall furnish the person effecting service with the necessary

copies of the summons and complaint.

(2) Service may be effected by any person who is not a party

and who is at least 18 years of age. At the request of the

plaintiff, however, the court may direct that service be effected

by a United States marshal, deputy United States marshal, or

other person or officer specially appointed by the court for that

purpose. Such an appointment must be made when the plaintiff is

authorized to proceed in forma pauperis pursuant to 28 U.S.C.

Sec. 1915 or is authorized to proceed as a seaman under 28 U.S.C.

Sec. 1916.

(d) Waiver of Service; Duty to Save Costs of Service; Request to

Waive.

(1) A defendant who waives service of a summons does not

thereby waive any objection to the venue or to the jurisdiction

of the court over the person of the defendant.

(2) An individual, corporation, or association that is subject

to service under subdivision (e), (f), or (h) and that receives

notice of an action in the manner provided in this paragraph has

a duty to avoid unnecessary costs of serving the summons. To

avoid costs, the plaintiff may notify such a defendant of the

commencement of the action and request that the defendant waive

service of a summons. The notice and request

(A) shall be in writing and shall be addressed directly to

the defendant, if an individual, or else to an officer or

managing or general agent (or other agent authorized by

appointment or law to receive service of process) of a

defendant subject to service under subdivision (h);

(B) shall be dispatched through first-class mail or other

reliable means;

(C) shall be accompanied by a copy of the complaint and shall

identify the court in which it has been filed;

(D) shall inform the defendant, by means of a text prescribed

in an official form promulgated pursuant to Rule 84, of the

consequences of compliance and of a failure to comply with the

request;

(E) shall set forth the date on which the request is sent;

(F) shall allow the defendant a reasonable time to return the

waiver, which shall be at least 30 days from the date on which

the request is sent, or 60 days from that date if the defendant

is addressed outside any judicial district of the United

States; and

(G) shall provide the defendant with an extra copy of the

notice and request, as well as a prepaid means of compliance in

writing.

If a defendant located within the United States fails to comply

with a request for waiver made by a plaintiff located within the

United States, the court shall impose the costs subsequently

incurred in effecting service on the defendant unless good cause

for the failure be shown.

(3) A defendant that, before being served with process, timely

returns a waiver so requested is not required to serve an answer

to the complaint until 60 days after the date on which the

request for waiver of service was sent, or 90 days after that

date if the defendant was addressed outside any judicial district

of the United States.

(4) When the plaintiff files a waiver of service with the

court, the action shall proceed, except as provided in paragraph

(3), as if a summons and complaint had been served at the time of

filing the waiver, and no proof of service shall be required.

(5) The costs to be imposed on a defendant under paragraph (2)

for failure to comply with a request to waive service of a

summons shall include the costs subsequently incurred in

effecting service under subdivision (e), (f), or (h), together

with the costs, including a reasonable attorney's fee, of any

motion required to collect the costs of service.

(e) Service Upon Individuals Within a Judicial District of the

United States. Unless otherwise provided by federal law, service

upon an individual from whom a waiver has not been obtained and

filed, other than an infant or an incompetent person, may be

effected in any judicial district of the United States:

(1) pursuant to the law of the state in which the district

court is located, or in which service is effected, for the

service of a summons upon the defendant in an action brought in

the courts of general jurisdiction of the State; or

(2) by delivering a copy of the summons and of the complaint to

the individual personally or by leaving copies thereof at the

individual's dwelling house or usual place of abode with some

person of suitable age and discretion then residing therein or by

delivering a copy of the summons and of the complaint to an agent

authorized by appointment or by law to receive service of

process.

(f) Service Upon Individuals in a Foreign Country. Unless

otherwise provided by federal law, service upon an individual from

whom a waiver has not been obtained and filed, other than an infant

or an incompetent person, may be effected in a place not within any

judicial district of the United States:

(1) by any internationally agreed means reasonably calculated

to give notice, such as those means authorized by the Hague

Convention on the Service Abroad of Judicial and Extrajudicial

Documents; or

(2) if there is no internationally agreed means of service or

the applicable international agreement allows other means of

service, provided that service is reasonably calculated to give

notice:

(A) in the manner prescribed by the law of the foreign

country for service in that country in an action in any of its

courts of general jurisdiction; or

(B) as directed by the foreign authority in response to a

letter rogatory or letter of request; or

(C) unless prohibited by the law of the foreign country, by

(i) delivery to the individual personally of a copy of the

summons and the complaint; or

(ii) any form of mail requiring a signed receipt, to be

addressed and dispatched by the clerk of the court to the

party to be served; or

(3) by other means not prohibited by international agreement as

may be directed by the court.

(g) Service Upon Infants and Incompetent Persons. Service upon an

infant or an incompetent person in a judicial district of the

United States shall be effected in the manner prescribed by the law

of the state in which the service is made for the service of

summons or other like process upon any such defendant in an action

brought in the courts of general jurisdiction of that state.

Service upon an infant or an incompetent person in a place not

within any judicial district of the United States shall be effected

in the manner prescribed by paragraph (2)(A) or (2)(B) of

subdivision (f) or by such means as the court may direct.

(h) Service Upon Corporations and Associations. Unless otherwise

provided by federal law, service upon a domestic or foreign

corporation or upon a partnership or other unincorporated

association that is subject to suit under a common name, and from

which a waiver of service has not been obtained and filed, shall be

effected:

(1) in a judicial district of the United States in the manner

prescribed for individuals by subdivision (e)(1), or by

delivering a copy of the summons and of the complaint to an

officer, a managing or general agent, or to any other agent

authorized by appointment or by law to receive service of process

and, if the agent is one authorized by statute to receive service

and the statute so requires, by also mailing a copy to the

defendant, or

(2) in a place not within any judicial district of the United

States in any manner prescribed for individuals by subdivision

(f) except personal delivery as provided in paragraph (2)(C)(i)

thereof.

(i) Serving the United States, Its Agencies, Corporations,

Officers, or Employees.

(1) Service upon the United States shall be effected

(A) by delivering a copy of the summons and of the complaint

to the United States attorney for the district in which the

action is brought or to an assistant United States attorney or

clerical employee designated by the United States attorney in a

writing filed with the clerk of the court or by sending a copy

of the summons and of the complaint by registered or certified

mail addressed to the civil process clerk at the office of the

United States attorney and

(B) by also sending a copy of the summons and of the

complaint by registered or certified mail to the Attorney

General of the United States at Washington, District of

Columbia, and

(C) in any action attacking the validity of an order of an

officer or agency of the United States not made a party, by

also sending a copy of the summons and of the complaint by

registered or certified mail to the officer or agency.

(2)(A) Service on an agency or corporation of the United

States, or an officer or employee of the United States sued only

in an official capacity, is effected by serving the United States

in the manner prescribed by Rule 4(i)(1) and by also sending a

copy of the summons and complaint by registered or certified mail

to the officer, employee, agency, or corporation.

(B) Service on an officer or employee of the United States sued

in an individual capacity for acts or omissions occurring in

connection with the performance of duties on behalf of the United

States - whether or not the officer or employee is sued also in

an official capacity - is effected by serving the United States

in the manner prescribed by Rule 4(i)(1) and by serving the

officer or employee in the manner prescribed by Rule 4(e), (f),

or (g).

(3) The court shall allow a reasonable time to serve process

under Rule 4(i) for the purpose of curing the failure to serve:

(A) all persons required to be served in an action governed

by Rule 4(i)(2)(A), if the plaintiff has served either the

United States attorney or the Attorney General of the United

States, or

(B) the United States in an action governed by Rule

4(i)(2)(B), if the plaintiff has served an officer or employee

of the United States sued in an individual capacity.

(j) Service Upon Foreign, State, or Local Governments.

(1) Service upon a foreign state or a political subdivision,

agency, or instrumentality thereof shall be effected pursuant to

28 U.S.C. Sec. 1608.

(2) Service upon a state, municipal corporation, or other

governmental organization subject to suit shall be effected by

delivering a copy of the summons and of the complaint to its

chief executive officer or by serving the summons and complaint

in the manner prescribed by the law of that state for the service

of summons or other like process upon any such defendant.

(k) Territorial Limits of Effective Service.

(1) Service of a summons or filing a waiver of service is

effective to establish jurisdiction over the person of a

defendant

(A) who could be subjected to the jurisdiction of a court of

general jurisdiction in the state in which the district court

is located, or

(B) who is a party joined under Rule 14 or Rule 19 and is

served at a place within a judicial district of the United

States and not more than 100 miles from the place from which

the summons issues, or

(C) who is subject to the federal interpleader jurisdiction

under 28 U.S.C. Sec. 1335, or

(D) when authorized by a statute of the United States.

(2) If the exercise of jurisdiction is consistent with the

Constitution and laws of the United States, serving a summons or

filing a waiver of service is also effective, with respect to

claims arising under federal law, to establish personal

jurisdiction over the person of any defendant who is not subject

to the jurisdiction of the courts of general jurisdiction of any

state.

(l) Proof of Service. If service is not waived, the person

effecting service shall make proof thereof to the court. If service

is made by a person other than a United States marshal or deputy

United States marshal, the person shall make affidavit thereof.

Proof of service in a place not within any judicial district of the

United States shall, if effected under paragraph (1) of subdivision

(f), be made pursuant to the applicable treaty or convention, and

shall, if effected under paragraph (2) or (3) thereof, include a

receipt signed by the addressee or other evidence of delivery to

the addressee satisfactory to the court. Failure to make proof of

service does not affect the validity of the service. The court may

allow proof of service to be amended.

(m) Time Limit for Service. If service of the summons and

complaint is not made upon a defendant within 120 days after the

filing of the complaint, the court, upon motion or on its own

initiative after notice to the plaintiff, shall dismiss the action

without prejudice as to that defendant or direct that service be

effected within a specified time; provided that if the plaintiff

shows good cause for the failure, the court shall extend the time

for service for an appropriate period. This subdivision does not

apply to service in a foreign country pursuant to subdivision (f)

or (j)(1).

(n) Seizure of Property; Service of Summons Not Feasible.

(1) If a statute of the United States so provides, the court

may assert jurisdiction over property. Notice to claimants of the

property shall then be sent in the manner provided by the statute

or by service of a summons under this rule.

(2) Upon a showing that personal jurisdiction over a defendant

cannot, in the district where the action is brought, be obtained

with reasonable efforts by service of summons in any manner

authorized by this rule, the court may assert jurisdiction over

any of the defendant's assets found within the district by

seizing the assets under the circumstances and in the manner

provided by the law of the state in which the district court is

located.

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff.

July 1, 1966; Apr. 29, 1980, eff. Aug. 1, 1980; Pub. L. 97-462,

Sec. 2, Jan. 12, 1983, 96 Stat. 2527; Mar. 2, 1987, eff. Aug. 1,

1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1,

2000.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). With the provision permitting additional

summons upon request of the plaintiff compare [former] Equity Rule

14 (Alias Subpoena) and the last sentence of [former] Equity Rule

12 (Issue of Subpoena - Time for Answer).

Note to Subdivision (b). This rule prescribes a form of summons

which follows substantially the requirements stated in [former]

Equity Rules 12 (Issue of Subpoena - Time for Answer) and 7

(Process, Mesne and Final).

U.S.C., Title 28, Sec. 721 [now 1691] (Sealing and testing of

writs) is substantially continued insofar as it applies to a

summons, but its requirements as to teste of process are

superseded. U.S.C., Title 28, [former] Sec. 722 (Teste of process,

day of), is superseded.

See Rule 12(a) for a statement of the time within which the

defendant is required to appear and defend.

Note to Subdivision (c). This rule does not affect U.S.C., Title

28, Sec. 503 [see 566], as amended June 15, 1935 (Marshals; duties)

and such statutes as the following insofar as they provide for

service of process by a marshal, but modifies them insofar as they

may imply service by a marshal only:

U.S.C., Title 15:

Sec. 5 (Bringing in additional parties) (Sherman Act)

Sec. 10 (Bringing in additional parties)

Sec. 25 (Restraining violations; procedure)

U.S.C., Title 28:

Sec. 45 [former] (Practice and procedure in certain cases under

the interstate commerce laws)

Compare [former] Equity Rule 15 (Process, by Whom Served).

Note to Subdivision (d). Under this rule the complaint must

always be served with the summons.

Paragraph (1). For an example of a statute providing for service

upon an agent of an individual see U.S.C., Title 28, Sec. 109 [now

1400, 1694] (Patent cases).

Paragraph (3). This enumerates the officers and agents of a

corporation or of a partnership or other unincorporated association

upon whom service of process may be made, and permits service of

process only upon the officers, managing or general agents, or

agents authorized by appointment or by law, of the corporation,

partnership or unincorporated association against which the action

is brought. See Christian v. International Ass'n of Machinists, 7

F.(2d) 481 (D.C.Ky., 1925) and Singleton v. Order of Railway

Conductors of America, 9 F.Supp. 417 (D.C.Ill., 1935). Compare

Operative Plasterers' and Cement Finishers' International Ass'n of

the United States and Canada v. Case, 93 F.(2d) 56 (App.D.C.,

1937).

For a statute authorizing service upon a specified agent and

requiring mailing to the defendant, see U.S.C., Title 6, Sec. 7

[now Title 31, Sec. 9306] (Surety companies as sureties;

appointment of agents; service of process).

Paragraphs (4) and (5) provide a uniform and comprehensive method

of service for all actions against the United States or an officer

or agency thereof. For statutes providing for such service, see

U.S.C., Title 7, Secs. 217 (Proceedings for suspension of orders),

499k (Injunctions; application of injunction laws governing orders

of Interstate Commerce Commission), 608c(15)(B) (Court review of

ruling of Secretary of Agriculture), and 855 (making Sec.

608c(15)(B) applicable to orders of the Secretary of Agriculture as

to handlers of anti-hog-cholera serum and hog-cholera virus);

U.S.C., Title 26, [former] Sec. 1569 (Bill in chancery to clear

title to realty on which the United States has a lien for taxes);

U.S.C., Title 28, [former] Secs. 45 (District Courts; practice and

procedure in certain cases under the interstate commerce laws),

[former] 763 (Petition in suit against the United States; service;

appearance by district attorney), 766 [now 2409] (Partition suits

where United States is tenant in common or joint tenant), 902 [now

2410] (Foreclosure of mortgages or other liens on property in which

the United States has an interest). These and similar statutes are

modified insofar as they prescribe a different method of service or

dispense with the service of a summons.

For the [former] Equity Rule on service, see [former] Equity Rule

13 (Manner of Serving Subpoena).

Note to Subdivision (e). The provisions for the service of a

summons or of notice or of an order in lieu of summons contained in

U.S.C., Title 8, Sec. 405 [see 1451] (Cancellation of certificates

of citizenship fraudulently or illegally procured) (service by

publication in accordance with State law); U.S.C., Title 28, Sec.

118 [now 1655] (Absent defendants in suits to enforce liens);

U.S.C., Title 35, Sec. 72a [now 146, 291] (Jurisdiction of District

Court of United States for the District of Columbia in certain

equity suits where adverse parties reside elsewhere) (service by

publication against parties residing in foreign countries); U.S.C.,

Title 38, Sec. 445 [now 1984] (Action against the United States on

a veteran's contract of insurance) (parties not inhabitants of or

not found within the District may be served with an order of the

court, personally or by publication) and similar statutes are

continued by this rule. Title 24, Sec. 378 [now Title 13, Sec. 336]

of the Code of the District of Columbia (Publication against

nonresident; those absent for six months; unknown heirs or

devisees; for divorce or in rem; actual service beyond District) is

continued by this rule.

Note to Subdivision (f). This rule enlarges to some extent the

present rule as to where service may be made. It does not, however,

enlarge the jurisdiction of the district courts.

U.S.C., Title 28, Secs. 113 [now 1392] (Suits in States

containing more than one district) (where there are two or more

defendants residing in different districts), [former] 115 (Suits of

a local nature), 116 [now 1392] (Property in different districts in

same State), [former] 838 (Executions run in all districts of

State); U.S.C., Title 47, Sec. 13 (Action for damages against a

railroad or telegraph company whose officer or agent in control of

a telegraph line refuses or fails to operate such line in a certain

manner - "upon any agent of the company found in such state");

U.S.C., Title 49, Sec. 321(c) [see 13304(a)] (Requiring designation

of a process agent by interstate motor carriers and in case of

failure so to do, service may be made upon any agent in the State)

and similar statutes, allowing the running of process throughout a

State, are substantially continued.

U.S.C., Title 15, Secs. 5 (Bringing in additional parties)

(Sherman Act), 25 (Restraining violations; procedure); U.S.C.,

Title 28, Secs. 44 [now 2321] (Procedure in certain cases under

interstate commerce laws; service of processes of court), 117 [now

754, 1692] (Property in different States in same circuit;

jurisdiction of receiver), 839 [now 2413] (Executions; run in every

State and Territory) and similar statutes, providing for the

running of process beyond the territorial limits of a State, are

expressly continued.

Note to Subdivision (g). With the second sentence compare

[former] Equity Rule 15 (Process, by Whom Served).

Note to Subdivision (h). This rule substantially continues

U.S.C., Title 28, [former] Sec. 767 (Amendment of process).

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

Subdivision (b). Under amended subdivision (e) of this rule, an

action may be commenced against a nonresident of the State in which

the district court is held by complying with State procedures.

Frequently the form of the summons or notice required in these

cases by State law differs from the Federal form of summons

described in present subdivision (b) and exemplified in Form 1. To

avoid confusion, the amendment of subdivision (b) states that a

form of summons or notice, corresponding "as nearly as may be" to

the State form, shall be employed. See also a corresponding

amendment of Rule 12(a) with regard to the time to answer.

Subdivision (d)(4). This paragraph, governing service upon the

United States, is amended to allow the use of certified mail as an

alternative to registered mail for sending copies of the papers to

the Attorney General or to a United States officer or agency. Cf.

N.J. Rule 4:5-2. See also the amendment of Rule 30(f)(1).

Subdivision (d)(7). Formerly a question was raised whether this

paragraph, in the context of the rule as a whole, authorized

service in original Federal actions pursuant to State statutes

permitting service on a State official as a means of bringing a

nonresident motorist defendant into court. It was argued in McCoy

v. Siler, 205 F.2d 498, 501-2 (3d Cir.) (concurring opinion), cert.

denied, 346 U.S. 872, 74 S.Ct. 120, 98 L.Ed. 380 (1953), that the

effective service in those cases occurred not when the State

official was served but when notice was given to the defendant

outside the State, and that subdivision (f) (Territorial limits of

effective service), as then worded, did not authorize out-of-State

service. This contention found little support. A considerable

number of cases held the service to be good, either by fixing upon

the service on the official within the State as the effective

service, thus satisfying the wording of subdivision (f) as it then

stood, see Holbrook v. Cafiero, 18 F.R.D. 218 (D.Md. 1955);

Pasternack v. Dalo, 17 F.R.D. 420; (W.D.Pa. 1955); cf. Super Prods.

Corp. v. Parkin, 20 F.R.D. 377 (S.D.N.Y. 1957), or by reading

paragraph (7) as not limited by subdivision (f). See Griffin v.

Ensign, 234 F.2d 307 (3d Cir. 1956); 2 Moore's Federal Practice,

¶ 4.19 (2d ed. 1948); 1 Barron & Holtzoff, Federal Practice &

Procedure Sec. 182.1 (Wright ed. 1960); Comment, 27 U. of

Chi.L.Rev. 751 (1960). See also Olberding v. Illinois Central R.R.,

201 F.2d 582 (6th Cir.), rev'd on other grounds, 346 U.S. 338, 74

S.Ct. 83, 98 L.Ed. 39 (1953); Feinsinger v. Bard, 195 F.2d 45 (7th

Cir. 1952).

An important and growing class of State statutes base personal

jurisdiction over nonresidents on the doing of acts or on other

contacts within the State, and permit notice to be given the

defendant outside the State without any requirement of service on a

local State official. See, e.g., Ill.Ann.Stat. ch. 110, Secs. 16,

17 (Smith-Hurd 1956); Wis.Stat. Sec. 262.06 (1959). This service,

employed in original Federal actions pursuant to paragraph (7), has

also been held proper. See Farr & Co. v. Cia. Intercontinental de

Nav. de Cuba, 243 F.2d 342 (2d Cir. 1957); Kappus v. Western Hills

Oil, Inc., 24 F.R.D. 123 (E.D.Wis. 1959); Star v. Rogalny, 162

F.Supp. 181 (E.D.Ill. 1957). It has also been held that the clause

of paragraph (7) which permits service "in the manner prescribed by

the law of the state," etc., is not limited by subdivision (c)

requiring that service of all process be made by certain designated

persons. See Farr & Co. v. Cia. Intercontinental de Nav. de Cuba,

supra. But cf. Sappia v. Lauro Lines, 130 F.Supp. 810 (S.D.N.Y.

1955).

The salutary results of these cases are intended to be preserved.

See paragraph (7), with a clarified reference to State law, and

amended subdivisions (e) and (f).

Subdivision (e). For the general relation between subdivisions

(d) and (e), see 2 Moore, supra, ¶ 4.32.

The amendment of the first sentence inserting the word

"thereunder" supports the original intention that the "order of

court" must be authorized by a specific United States statute. See

1 Barron & Holtzoff, supra, at 731. The clause added at the end of

the first sentence expressly adopts the view taken by commentators

that, if no manner of service is prescribed in the statute or

order, the service may be made in a manner stated in Rule 4. See 2

Moore, supra, ¶ 4.32, at 1004; Smit, International Aspects of

Federal Civil Procedure, 61 Colum.L.Rev. 1031, 1036-39 (1961). But

see Commentary, 5 Fed. Rules Serv. 791 (1942).

Examples of the statutes to which the first sentence relates are

28 U.S.C. Sec. 2361 (Interpleader; process and procedure); 28

U.S.C. Sec. 1655 (Lien enforcement; absent defendants).

The second sentence, added by amendment, expressly allows resort

in original Federal actions to the procedures provided by State law

for effecting service on nonresident parties (as well as on

domiciliaries not found within the State). See, as illustrative,

the discussion under amended subdivision (d)(7) of service pursuant

to State nonresident motorist statutes and other comparable State

statutes. Of particular interest is the change brought about by the

reference in this sentence to State procedures for commencing

actions against nonresidents by attachment and the like,

accompanied by notice. Although an action commenced in a State

court by attachment may be removed to the Federal court if ordinary

conditions for removal are satisfied, see 28 U.S.C. Sec. 1450;

Rorick v. Devon Syndicate, Ltd., 307 U.S. 299, 59 S.Ct. 877, 83

L.Ed. 1303 (1939); Clark v. Wells, 203 U.S. 164, 27 S.Ct. 43, 51

L.Ed. 138 (1906), there has heretofore been no provision recognized

by the courts for commencing an original Federal civil action by

attachment. See Currie, Attachment and Garnishment in the Federal

Courts, 59 Mich.L.Rev. 337 (1961), arguing that this result came

about through historical anomaly. Rule 64, which refers to

attachment, garnishment, and similar procedures under State law,

furnishes only provisional remedies in actions otherwise validly

commenced. See Big Vein Coal Co. v. Read, 229 U.S. 31, 33 S.Ct.

694, 57 L.Ed. 1953 (1913); Davis v. Ensign-Bickford Co., 139 F.2d

624 (8th Cir. 1944); 7 Moore's Federal Practice ¶ 64.05 (2d

ed. 1954); 3 Barron & Holtzoff, Federal Practice & Procedure Sec.

1423 (Wright ed. 1958); but cf. Note, 13 So.Calif.L.Rev. 361

(1940). The amendment will now permit the institution of original

Federal actions against nonresidents through the use of familiar

State procedures by which property of these defendants is brought

within the custody of the court and some appropriate service is

made up them.

The necessity of satisfying subject-matter jurisdictional

requirements and requirements of venue will limit the practical

utilization of these methods of effecting service. Within those

limits, however, there appears to be no reason for denying

plaintiffs means of commencing actions in Federal courts which are

generally available in the State courts. See 1 Barron & Holtzoff,

supra, at 374-80; Nordbye, Comments on Proposed Amendments to Rules

of Civil Procedure for the United States District Courts, 18 F.R.D.

105, 106 (1956); Note, 34 Corn.L.Q. 103 (1948); Note, 13

So.Calif.L.Rev. 361 (1940).

If the circumstances of a particular case satisfy the applicable

Federal law (first sentence of Rule 4(e), as amended) and the

applicable State law (second sentence), the party seeking to make

the service may proceed under the Federal or the State law, at his

option.

See also amended Rule 13(a), and the Advisory Committee's Note

thereto.

Subdivision (f). The first sentence is amended to assure the

effectiveness of service outside the territorial limits of the

State in all the cases in which any of the rules authorize service

beyond those boundaries. Besides the preceding provisions of Rule

4, see Rule 71A(d)(3). In addition, the new second sentence of the

subdivision permits effective service within a limited area outside

the State in certain special situations, namely, to bring in

additional parties to a counterclaim or cross-claim (Rule 13(h)),

impleaded parties (Rule 14), and indispensable or conditionally

necessary parties to a pending action (Rule 19); and to secure

compliance with an order of commitment for civil contempt. In those

situations effective service can be made at points not more than

100 miles distant from the courthouse in which the action is

commenced, or to which it is assigned or transferred for trial.

The bringing in of parties under the 100-mile provision in the

limited situations enumerated is designed to promote the objective

of enabling the court to determine entire controversies. In the

light of present-day facilities for communication and travel, the

territorial range of the service allowed, analogous to that which

applies to the service of a subpoena under Rule 45(e)(1), can

hardly work hardship on the parties summoned. The provision will be

especially useful in metropolitan areas spanning more than one

State. Any requirements of subject-matter jurisdiction and venue

will still have to be satisfied as to the parties brought in,

although these requirements will be eased in some instances when

the parties can be regarded as "ancillary." See Pennsylvania R.R.

v. Erie Avenue Warehouse Co., 5 F.R.Serv.2d 14a.62, Case 2 (3d Cir.

1962); Dery v. Wyer, 265 F.2d 804 (2d Cir. 1959); United Artists

Corp. v. Masterpiece Productions, Inc., 221 F.2d 213 (2d Cir.

1955); Lesnik v. Public Industrials Corp., 144 F.2d 968 (2d Cir.

1944); Vaughn v. Terminal Transp. Co., 162 F.Supp. 647 (E.D.Tenn.

1957); and compare the fifth paragraph of the Advisory Committee's

Note to Rule 4(e), as amended. The amendment is but a moderate

extension of the territorial reach of Federal process and has ample

practical justification. See 2 Moore, supra. Sec. 4.01[13] (Supp.

1960); 1 Barron & Holtzoff, supra, Sec. 184; Note, 51 Nw.U.L.Rev.

354 (1956). But cf. Nordbye, Comments on Proposed Amendments to

Rules of Civil Procedure for the United States District Courts, 18

F.R.D. 105, 106 (1956).

As to the need for enlarging the territorial area in which orders

of commitment for civil contempt may be served, see Graber v.

Graber, 93 F.Supp. 281 (D.D.C. 1950); Teele Soap Mfg. Co. v. Pine

Tree Products Co., Inc., 8 F.Supp. 546 (D.N.H. 1934); Mitchell v.

Dexter, 244 Fed. 926 (1st Cir. 1917); in re Graves, 29 Fed. 60

(N.D. Iowa 1886).

As to the Court's power to amend subdivisions (e) and (f) as here

set forth, see Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 66

S.Ct. 242, 90 L.Ed. 185 (1946).

Subdivision (i). The continual increase of civil litigation

having international elements makes it advisable to consolidate,

amplify, and clarify the provisions governing service upon parties

in foreign countries. See generally Jones, International Judicial

Assistance: Procedural Chaos and a Program for Reform, 62 Yale L.J.

515 (1953); Longley, Serving Process, Subpoenas and Other Documents

in Foreign Territory, Proc. A.B.A., Sec. Int'l & Comp. L. 34

(1959); Smit, International Aspects of Federal Civil Procedure, 61

Colum.L.Rev. 1031 (1961).

As indicated in the opening lines of new subdivision (i),

referring to the provisions of subdivision (e), the authority for

effecting foreign service must be found in a statute of the United

States or a statute or rule of court of the State in which the

district court is held providing in terms or upon proper

interpretation for service abroad upon persons not inhabitants of

or found within the State. See the Advisory Committee's Note to

amended Rule 4(d)(7) and Rule 4(e). For examples of Federal and

State statutes expressly authorizing such service, see 8 U.S.C.

Sec. 1451(b); 35 U.S.C. Secs. 146, 293; Me.Rev.Stat., ch. 22, Sec.

70 (Supp. 1961); Minn.Stat.Ann. Sec. 303.13 (1947); N.Y.Veh. &

Tfc.Law Sec. 253. Several decisions have construed statutes to

permit service in foreign countries, although the matter is not

expressly mentioned in the statutes. See, e.g., Chapman v. Superior

Court, 162 Cal.App.2d 421, 328 P.2d 23 (Dist.Ct.App. 1958); Sperry

v. Fliegers, 194 Misc. 438, 86 N.Y.S.2d 830 (Sup.Ct. 1949); Ewing

v. Thompson, 233 N.C. 564, 65 S.E.2d 17 (1951); Rushing v. Bush,

260 S.W.2d 900 (Tex.Ct.Civ.App. 1953). Federal and State statutes

authorizing service on nonresidents in such terms as to warrant the

interpretation that service abroad is permissible include 15 U.S.C.

Secs. 77v(a), 78aa, 79y; 28 U.S.C. Sec. 1655; 38 U.S.C. Sec.

784(a); Ill.Ann.Stat. ch. 110, Secs. 16, 17 (Smith-Hurd 1956);

Wis.Stat. Sec. 262.06 (1959).

Under subdivisions (e) and (i), when authority to make foreign

service is found in a Federal statute or statute or rule of court

of a State, it is always sufficient to carry out the service in the

manner indicated therein. Subdivision (i) introduces considerable

further flexibility by permitting the foreign service and return

thereof to be carried out in any of a number of other alternative

ways that are also declared to be sufficient. Other aspects of

foreign service continue to be governed by the other provisions of

Rule 4. Thus, for example, subdivision (i) effects no change in the

form of the summons, or the issuance of separate or additional

summons, or the amendment of service.

Service of process beyond the territorial limits of the United

States may involve difficulties not encountered in the case of

domestic service. Service abroad may be considered by a foreign

country to require the performance of judicial, and therefore

"sovereign," acts within its territory, which that country may

conceive to be offensive to its policy or contrary to its law. See

Jones, supra, at 537. For example, a person not qualified to serve

process according to the law of the foreign country may find

himself subject to sanctions if he attempts service therein. See

Inter-American Judicial Committee, Report on Uniformity of

Legislation on International Cooperation in Judicial Procedures 20

(1952). The enforcement of a judgment in the foreign country in

which the service was made may be embarrassed or prevented if the

service did not comport with the law of that country. See ibid.

One of the purposes of subdivision (i) is to allow accommodation

to the policies and procedures of the foreign country. It is

emphasized, however, that the attitudes of foreign countries vary

considerably and that the question of recognition of United States

judgments abroad is complex. Accordingly, if enforcement is to be

sought in the country of service, the foreign law should be

examined before a choice is made among the methods of service

allowed by subdivision (i).

Subdivision (i)(1). Subparagraph (a) of paragraph (1), permitting

service by the method prescribed by the law of the foreign country

for service on a person in that country in a civil action in any of

its courts of general jurisdiction, provides an alternative that is

likely to create least objection in the place of service and also

is likely to enhance the possibilities of securing ultimate

enforcement of the judgment abroad. See Report on Uniformity of

Legislation on International Cooperation in Judicial Procedures,

supra.

In certain foreign countries service in aid of litigation pending

in other countries can lawfully be accomplished only upon request

to the foreign court, which in turn directs the service to be made.

In many countries this has long been a customary way of

accomplishing the service. See In re Letters Rogatory out of First

Civil Court of City of Mexico, 261 Fed. 652 (S.D.N.Y. 1919); Jones,

supra, at 543; Comment, 44 Colum.L.Rev. 72 (1944); Note, 58 Yale

L.J. 1193 (1949). Subparagraph (B) of paragraph (1), referring to a

letter rogatory, validates this method. A proviso, applicable to

this subparagraph and the preceding one, requires, as a safeguard,

that the service made shall be reasonably calculated to give actual

notice of the proceedings to the party. See Milliken v. Meyer, 311

U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940).

Subparagraph (C) of paragraph (1), permitting foreign service by

personal delivery on individuals and corporations, partnerships,

and associations, provides for a manner of service that is not only

traditionally preferred, but also is most likely to lead to actual

notice. Explicit provision for this manner of service was thought

desirable because a number of Federal and State statutes permitting

foreign service do not specifically provide for service by personal

delivery abroad, see e.g., 35 U.S.C. Secs. 146, 293; 46 [App.]

U.S.C. Sec. 1292; Calif.Ins.Code Sec. 1612; N.Y.Veh. & Tfc.Law Sec.

253, and it also may be unavailable under the law of the country in

which the service is made.

Subparagraph (D) of paragraph (1), permitting service by certain

types of mail, affords a manner of service that is inexpensive and

expeditious, and requires a minimum of activity within the foreign

country. Several statutes specifically provide for service in a

foreign country by mail, e.g., Hawaii Rev.Laws Secs. 230-31, 230-32

(1955); Minn.Stat.Ann. Sec. 303.13 (1947); N.Y.Civ.Prac.Act, Sec.

229-b; N.Y.Veh. & Tfc.Law Sec. 253, and it has been sanctioned by

the courts even in the absence of statutory provision specifying

that form of service. Zurini v. United States, 189 F.2d 722 (8th

Cir. 1951); United States v. Cardillo, 135 F.Supp. 798 (W.D.Pa.

1955); Autogiro Co. v. Kay Gyroplanes, Ltd., 55 F.Supp. 919 (D.D.C.

1944). Since the reliability of postal service may vary from

country to country, service by mail is proper only when it is

addressed to the party to be served and a form of mail requiring a

signed receipt is used. An additional safeguard is provided by the

requirement that the mailing be attended to be the clerk of the

court. See also the provisions of paragraph (2) of this subdivision

(i) regarding proof of service by mail.

Under the applicable law it may be necessary, when the defendant

is an infant or incompetent person, to deliver the summons and

complaint to a guardian, committee, or similar fiduciary. In such a

case it would be advisable to make service under subparagraph (A),

(B), or (E).

Subparagraph (E) of paragraph (1) adds flexibility by permitting

the court by order to tailor the manner of service to fit the

necessities of a particular case or the peculiar requirements of

the law of the country in which the service is to be made. A

similar provision appears in a number of statutes, e.g., 35 U.S.C.

Secs. 146, 293; 38 U.S.C. Sec. 784(a); 46 [App.] U.S.C. Sec. 1292.

The next-to-last sentence of paragraph (1) permits service under

(C) and (E) to be made by any person who is not a party and is not

less than 18 years of age or who is designated by court order or by

the foreign court. Cf. Rule 45(c); N.Y.Civ.Prac.Act Secs. 233, 235.

This alternative increases the possibility that the plaintiff will

be able to find a process server who can proceed unimpeded in the

foreign country; it also may improve the chances of enforcing the

judgment in the country of service. Especially is the alternative

valuable when authority for the foreign service is found in a

statute or rule of court that limits the group of eligible process

servers to designated officials or special appointees who, because

directly connected with another "sovereign," may be particularly

offensive to the foreign country. See generally Smit, supra, at

1040-41. When recourse is had to subparagraph (A) or (B) the

identity of the process server always will be determined by the law

of the foreign country in which the service is made.

The last sentence of paragraph (1) sets forth an alternative

manner for the issuance and transmission of the summons for

service. After obtaining the summons from the clerk, the plaintiff

must ascertain the best manner of delivering the summons and

complaint to the person, court, or officer who will make the

service. Thus the clerk is not burdened with the task of

determining who is permitted to serve process under the law of a

particular country or the appropriate governmental or

nongovernmental channel for forwarding a letter rogatory. Under

(D), however, the papers must always be posted by the clerk.

Subdivision (i)(2). When service is made in a foreign country,

paragraph (2) permits methods for proof of service in addition to

those prescribed by subdivision (g). Proof of service in accordance

with the law of the foreign country is permitted because foreign

process servers, unaccustomed to the form or the requirement of

return of service prevalent in the United States, have on occasion

been unwilling to execute the affidavit required by Rule 4(g). See

Jones, supra, at 537; Longley, supra, at 35. As a corollary of the

alternate manner of service in subdivision (i)(1)(E), proof of

service as directed by order of the court is permitted. The special

provision for proof of service by mail is intended as an additional

safeguard when that method is used. On the type of evidence of

delivery that may be satisfactory to a court in lieu of a signed

receipt, see Aero Associates, Inc. v. La Metropolitana, 183 F.Supp.

357 (S.D.N.Y. 1960).

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

The wording of Rule 4(f) is changed to accord with the amendment

of Rule 13(h) referring to Rule 19 as amended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT

Subdivision (a). This is a technical amendment to conform this

subdivision with the amendment of subdivision (c).

Subdivision (c). The purpose of this amendment is to authorize

service of process to be made by any person who is authorized to

make service in actions in the courts of general jurisdiction of

the state in which the district court is held or in which service

is made.

There is a troublesome ambiguity in Rule 4. Rule 4(c) directs

that all process is to be served by the marshal, by his deputy, or

by a person specially appointed by the court. But Rule 4(d)(7)

authorizes service in certain cases "in the manner prescribed by

the law of the state in which the district court is held. . . ."

And Rule 4(e), which authorizes service beyond the state and

service in quasi in rem cases when state law permits such service,

directs that "service may be made . . . under the circumstances and

in the manner prescribed in the [state] statute or rule." State

statutes and rules of the kind referred to in Rule 4(d)(7) and Rule

4(e) commonly designate the persons who are to make the service

provided for, e.g., a sheriff or a plaintiff. When that is so, may

the persons so designated by state law make service, or is service

in all cases to be made by a marshal or by one specially appointed

under present Rule 4(c)? The commentators have noted the ambiguity

and have suggested the desirability of an amendment. See 2 Moore's

Federal Practice ¶ 4.08 (1974); Wright & Miller, Federal

Practice and Procedure: Civil Sec. 1092 (1969). And the ambiguity

has given rise to unfortunate results. See United States for the

use of Tanos v. St. Paul Mercury Ins. Co., 361 F. 2d 838 (5th Cir.

1966); Veeck v. Commodity Enterprises, Inc., 487 F. 2d 423 (9th

Cir. 1973).

The ambiguity can be resolved by specific amendments to Rules

4(d)(7) and 4(e), but the Committee is of the view that there is no

reason why Rule 4(c) should not generally authorize service of

process in all cases by anyone authorized to make service in the

courts of general jurisdiction of the state in which the district

court is held or in which service is made. The marshal continues to

be the obvious, always effective officer for service of process.

LEGISLATIVE STATEMENT - 1983 AMENDMENT

128 CONGRESSIONAL RECORD H9848, DEC. 15, 1982

Mr. EDWARDS of California. Mr. Speaker, in July Mr. McClory and I

brought before the House a bill to delay the effective date of

proposed changes in rule 4 of the Federal Rules of Civil Procedure,

dealing with service of process. The Congress enacted that

legislation and delayed the effective date so that we could cure

certain problems in the proposed amendments to rule 4.

Since that time, Mr. McClory and I introduced a bill, H.R. 7154,

that cures those problems. It was drafted in consultation with

representatives of the Department of Justice, the Judicial

Conference of the United States, and others.

The Department of Justice and the Judicial Conference have

endorsed the bill and have urged its prompt enactment. Indeed, the

Department of Justice has indicated that the changes occasioned by

the bill will facilitate its collection of debts owned to the

Government.

I have a letter from the Office of Legislative Affairs of the

Department of Justice supporting the bill that I will submit for

the Record. Also, I am submitting for the Record a

section-by-section analysis of the bill.

H.R. 7154 makes much needed changes in rule 4 of the Federal

Rules of Civil Procedure and is supported by all interested

parties. I urge my colleagues to support it.

U.S. Department of Justice.

Office of Legislative Affairs,

Washington, D.C., December 10, 1982.

Hon. Peter W. Rodino, Jr.,

Chairman, Committee on the Judiciary, House of Representatives,

Washington, D.C.

Dear Mr. Chairman: This is to proffer the views of the Department

of Justice on H.R. 7154, the proposed Federal Rules of Civil

Procedure Amendments Act of 1982. While the agenda is extremely

tight and we appreciate that fact, we do reiterate that this

Department strongly endorses the enactment of H.R. 7154. We would

greatly appreciate your watching for any possible way to enact this

legislation expeditiously.

H.R. 7154 would amend Rule 4 of the Federal Rules of Civil

Procedure to relieve effectively the United States Marshals Service

of the duty of routinely serving summonses and complaints for

private parties in civil actions and would thus achieve a goal this

Department has long sought. Experience has shown that the Marshals

Service's increasing workload and limited budget require such major

relief from the burdens imposed by its role as process-server in

all civil actions.

The bill would also amend Rule 4 to permit certain classes of

defendants to be served by first class mail with a notice and

acknowledgment of receipt form enclosed. We have previously

expressed a preference for the service-by-mail provisions of the

proposed amendments to Rule 4 which the Supreme Court transmitted

to Congress on April 28, 1982.

The amendments proposed by the Supreme Court would permit service

by registered or certified mail, return receipt requested. We had

regarded the Supreme Court proposal as the more efficient because

it would not require and affirmative act of signing and mailing on

the part of a defendant. Moreover, the Supreme Court proposal would

permit the entry of a default judgment if the record contained a

returned receipt showing acceptance by the defendant or a returned

envelope showing refusal of the process by the defendant and

subsequent service and notice by first class mail. However, critics

of that system of mail service have argued that certified mail is

not an effective method of providing actual notice to defendants of

claims against them because signatures may be illegible or may not

match the name of the defendant, or because it may be difficult to

determine whether mail has been "unclaimed" or "refused," the

latter providing the sole basis for a default judgment.

As you know, in light of these criticisms the Congress enacted

Public Law 97-227 (H.R. 6663) postponing the effective date of the

proposed amendments to Rule 4 until October 1, 1983, so as to

facilitate further review of the problem. This Department opposed

the delay in the effective date, primarily because the Supreme

Court's proposed amendments also contained urgently needed

provisions designed to relieve the United States Marshals of the

burden of serving summonses and complaints in private civil

actions. In our view, these necessary relief provisions are readily

separable from the issues of service by certified mail and the

propriety of default judgment after service by certified mail which

the Congress felt warranted additional review.

During the floor consideration of H.R. 6663 Congressman Edwards

and other proponents of the delayed effective date pledged to

expedite the review of the proposed amendments to Rule 4, given the

need to provide prompt relief for the Marshals Service in the

service of process area. In this spirit Judiciary Committee staff

consulted with representatives of this Department, the Judicial

Conference, and others who had voiced concern about the proposed

amendments.

H.R. 7154 is the product of those consultations and accommodated

the concerns of the Department in a very workable and acceptable

manner.

Accordingly, we are satisfied that the provisions of H.R. 7154

merit the support of all three branches of the Federal Government

and everyone else who has a stake in the fair and efficient service

of process in civil actions. We urge prompt consideration of H.R.

7154 by the Committee.(!1)

The Office of Management and Budget has advised that there is no

objection to the submission of this report from the standpoint of

the Administration's program.

Sincerely,

Robert A. McConnell,

Assistant Attorney General.

_______

(!1) In addition to amending Rule 4, we have previously

recommended: (a) amendments to 28 U.S.C. Sec. 569(b) redefining the

Marshals traditional role by eliminating the statutory requirement

that they serve subpoenas, as well as summonses and complaints,

and; (b) amendments to 28 U.S.C. Sec. 1921 changing the manner and

level in which marshal fees are charged for serving private civil

process. These legislative changes are embodied in Section 10 of S.

2567 and the Department's proposed fiscal year 1983 Appropriations

Authorization bill. If, in the Committee's judgment, efforts to

incorporate these suggested amendments in H.R. 7154 would in any

way impede consideration of the bill during the few remaining

legislative days in the 97th Congress, we would urge that they be

separately considered early in the 98th Congress.

H.R. 7154 - FEDERAL RULES OF CIVIL PROCEDURE AMENDMENTS ACT OF 1982

BACKGROUND

The Federal Rules of Civil Procedure set forth the procedures to

be followed in civil actions and proceedings in United States

district courts. These rules are usually amended by a process

established by 28 U.S.C. 2072, often referred to as the "Rules

Enabling Act". The Rules Enabling Act provides that the Supreme

Court can propose new rules of "practice and procedure" and

amendments to existing rules by transmitting them to Congress after

the start of a regular session but not later than May 1. The rules

and amendments so proposed take effect 90 days after transmittal

unless legislation to the contrary is enacted.(!1)

On April 28, 1982, the Supreme Court transmitted to Congress

several proposed amendments to the Federal Rules of Civil

Procedure, the Federal Rules of Criminal Procedure (which govern

criminal cases and proceedings in Federal courts), and the Rules

and Forms Governing Proceedings in the United States District

Courts under sections 2254 and 2255 of Title 28, United States Code

(which govern habeas corpus proceedings). These amendments were to

have taken effect on August 1, 1982.

The amendments to Rule 4 of the Federal Rules of Civil Procedure

were intended primarily to relieve United States marshals of the

burden of serving summonses and complaints in private civil

actions. Appendix II, at 7 (Report of the Committee on Rules of

Practice and Procedure), 16 (Advisory Committee Note). The

Committee received numerous complaints that the changes not only

failed to achieve that goal, but that in the process the changes

saddled litigators with flawed mail service, deprived litigants of

the use of effective local procedures for service, and created a

time limit for service replete with ambiguities that could only be

resolved by costly litigation. See House Report No. 97-662, at 2-4

(1982).

In order to consider these criticisms, Congress enacted Public

Law 97-227, postponing the effective date of the proposed

amendments to Rule 4 until October 1, 1983.(!2) Accordingly, in

order to help shape the policy behind, and the form of, the

proposed amendments, Congress must enact legislation before October

1, 1983.(!3)

With that deadline and purpose in mind, consultations were held

with representatives of the Judicial Conference, the Department of

Justice, and others who had voiced concern about the proposed

amendments. H.R. 7154 is the product of those consultations. The

bill seeks to effectuate the policy of relieving the Marshals

Service of the duty of routinely serving summonses and complaints.

It provides a system of service by mail modeled upon a system found

to be effective in California, and finally, it makes appropriate

stylistic, grammatical, and other changes in Rule 4.

NEED FOR THE LEGISLATION

1. CURRENT RULE 4

Rule 4 of the Federal Rules of Civil Procedure relates to the

issuance and service of process. Subsection (c) authorizes service

of process by personnel of the Marshals Service, by a person

specially appointed by the Court, or "by a person authorized to

serve process in an action brought in the courts of general

jurisdiction of the state in which the district court is held or in

which service is made." Subsection (d) describes how a summons and

complaint must be served and designates those persons who must be

served in cases involving specified categories of defendants. Mail

service is not directly authorized. Subsection (d)(7), however,

authorizes service under the law of the state in which the district

court sits upon defendants described in subsections (d)(1) (certain

individuals) and (d)(3) (organizations). Thus, if state law

authorizes service by mail of a summons and complaint upon an

individual or organization described in subsections (d)(1) or (3),

then subsection (d)(7) authorizes service by mail for United States

district courts in that state.(!4)

2. REDUCING THE ROLE OF MARSHALS

The Supreme Court's proposed modifications of Rule 4 were

designed to alleviate the burden on the Marshals Service of serving

summonses and complaints in private civil actions. Appendix II, at

7 (Report of the Committee on Rules of Practice and Procedure), 16

(Advisory Committee Note). While the Committee received no

complaints about the goal of reducing the role of the Marshals

Service, the Court's proposals simply failed to achieve that goal.

See House Report No. 97-662, at 2-3 (1982).

The Court's proposed Rule 4(c)(2)(B) required the Marshals

Service to serve summonses and complaints "pursuant to any

statutory provision expressly providing for service by a United

States Marshal or his deputy." (!5) One such statutory provision is

28 U.S.C. 569(b), which compels marshals to "execute all lawful

writs, process and orders issued under authority of the United

States, including those of the courts * * *." (emphasis added).

Thus, any party could have invoked 28 U.S.C. 569(b) to utilize a

marshal for service of a summons and complaint, thereby thwarting

the intent of the new subsection to limit the use of marshals. The

Justice Department acknowledges that the proposed subsection did

not accomplish its objectives.(!6)

Had 28 U.S.C. 569(b) been inconsistent with proposed Rule

4(c)(2)(B), the latter would have nullified the former under 28

U.S.C. 2072, which provides that "All laws in conflict with such

rules shall be of no further force or effect after such rules have

taken effect." Since proposed Rule 4(c)(2)(B) specifically referred

to statutes such as 28 U.S.C. 569(b), however, the new subsection

did not conflict with 28 U.S.C. 569(b) and did not, therefore,

supersede it.

H.R. 7154 cures this problem and achieves the desired reduction

in the role of the Marshals Service by authorizing marshals to

serve summonses and complaints "on behalf of the United States". By

so doing, H.R. 7154 eliminates the loophole in the Court's proposed

language and still provides for service by marshals on behalf of

the Government.(!7)

3. MAIL SERVICE

The Supreme Court's proposed subsection (d)(7) and (8)

authorized, as an alternative to personal service, mail service of

summonses and complaints on individuals and organizations described

in subsection (d)(1) and (3), but only through registered or

certified mail, restricted delivery. Critics of that system of mail

service argued that registered and certified mail were not

necessarily effective methods of providing actual notice to

defendants of claims against them. This was so, they argued,

because signatures may be illegible or may not match the name of

the defendant, or because it may be difficult to determine whether

mail has been "unclaimed" or "refused", the latter apparently

providing the sole basis for a default judgment.(!8)

H.R. 7154 provides for a system of service by mail similar to the

system now used in California. See Cal. Civ. Pro. Sec. 415.30 (West

1973). Service would be by ordinary mail with a notice and

acknowledgment of receipt form enclosed. If the defendant returns

the acknowledgment form to the sender within 20 days of mailing,

the sender files the return and service is complete. If the

acknowledgment is not returned within 20 days of mailing, then

service must be effected through some other means provided for in

the Rules.

This system of mail service avoids the notice problems created by

the registered and certified mail procedures proposed by the

Supreme Court. If the proper person receives the notice and returns

the acknowledgment, service is complete. If the proper person does

not receive the mailed form, or if the proper person receives the

notice but fails to return the acknowledgment form, another method

of service authorized by law is required.(!9) In either instance,

however, the defendant will receive actual notice of the claim. In

order to encourage defendants to return the acknowledgment form,

the court can order a defendant who does not return it to pay the

costs of service unless the defendant can show good cause for the

failure to return it.

4. THE LOCAL OPTION

The Court's proposed amendments to Rule 4 deleted the provision

in current subsection (d)(7) that authorizes service of a summons

and complaint upon individuals and organizations "in the manner

prescribed by the law of the state in which the district court is

held for the service of summons or other like process upon any such

defendant in an action brought in the courts of general

jurisdiction of that state." The Committee received a variety of

complaints about the deletion of this provision. Those in favor of

preserving the local option saw no reason to forego systems of

service that had been successful in achieving effective

notice.(!10)

H.R. 7154 carries forward the policy of the current rule and

permits a party to serve a summons and complaint upon individuals

and organizations described in Rule 4(d)(1) and (3) in accordance

with the law of the state in which the district court sits. Thus,

the bill authorizes four methods of serving a summons and complaint

on such defendants: (1) service by a nonparty adult (Rule

4(c)(2)(A)); (2) service by personnel of the Marshals Service, if

the party qualifies, such as because the party is proceeding in

forma pauperis (Rule 4(c)(2)(B)); (3) service in any manner

authorized by the law of the state in which the district court is

held (Rule 4(c)(2)(C)(i)); or (4) service by regular mail with a

notice and acknowledgment of receipt form enclosed (Rule

4(c)(2)(C)(ii)).(!11)

5. TIME LIMITS

Rule 4 does not currently provide a time limit within which

service must be completed. Primarily because United States marshals

currently effect service of process, no time restriction has been

deemed necessary. Appendix II, at 18 (Advisory Committee Note).

Along with the proposed changes to subdivisions (c) and (d) to

reduce the role of the Marshals Service, however, came new

subdivision (j), requiring that service of a summons and complaint

be made within 120 days of the filing of the complaint. If service

were not accomplished within that time, proposed subdivision (j)

required that the action "be dismissed as to that defendant without

prejudice upon motion or upon the court's own initiative". Service

by mail was deemed made for purposes of subdivision (j) "as of the

date on which the process was accepted, refused, or returned as

unclaimed".(!12)

H.R. 7154 adopts a policy of limiting the time to effect service.

It provides that if a summons and complaint have not been served

within 120 days of the filing of the complaint and the plaintiff

fails to show "good cause" for not completing service within that

time, then the court must dismiss the action as to the unserved

defendant. H.R. 7154 ensures that a plaintiff will be notified of

an attempt to dismiss the action. If dismissal for failure to serve

is raised by the court upon its own motion, the legislation

requires that the court provide notice to the plaintiff. If

dismissal is sought by someone else, Rule 5(a) of the Federal Rules

of Civil Procedure requires that the motion be served upon the

plaintiff.

Like proposed subsection (j), H.R. 7154 provides that a dismissal

for failure to serve within 120 days shall be "without prejudice".

Proposed subsection (j) was criticized by some for ambiguity

because, it was argued, neither the text of subsection (j) nor the

Advisory Committee Note indicated whether a dismissal without

prejudice would toll a statute of limitation. See House Report

97-662, at 3-4 (1982). The problem would arise when a plaintiff

files the complaint within the applicable statute of limitation

period but does not effect service within 120 days. If the statute

of limitation period expires during that period, and if the

plaintiff's action is dismissed "without prejudice", can the

plaintiff refile the complaint and maintain the action? The answer

depends upon how the statute of limitation is tolled.(!13)

If the law provides that the statute of limitation is tolled by

filing and service of the complaint, then a dismissal under H.R.

7154 for failure to serve within the 120 days would, by the terms

of the law controlling the tolling, bar the plaintiff from later

maintaining the cause of action.(!14) If the law provides that the

statute of limitation is tolled by filing alone, then the status of

the plaintiff's cause of action turns upon the plaintiff's

diligence. If the plaintiff has not been diligent, the court will

dismiss the complaint for failure to serve within 120 days, and the

plaintiff will be barred from later maintaining the cause of action

because the statute of limitation has run. A dismissal without

prejudice does not confer upon the plaintiff any rights that the

plaintiff does not otherwise possess and leaves a plaintiff whose

action has been dismissed in the same position as if the action had

never been filed.(!15) If, on the other hand, the plaintiff has

made reasonable efforts to effect service, then the plaintiff can

move under Rule 6(b) to enlarge the time within which to serve or

can oppose dismissal for failure to serve. A court would

undoubtedly permit such a plaintiff additional time within which to

effect service. Thus, a diligent plaintiff can preserve the cause

of action. This result is consistent with the policy behind the

time limit for service and with statutes of limitation, both of

which are designed to encourage prompt movement of civil actions in

the federal courts.

6. CONFORMING AND CLARIFYING SUBSECTIONS (D)(4) AND (5)

Current subsections (d)(4) and (5) prescribe which persons must

be served in cases where an action is brought against the United

States or an officer or agency of the United States. Under

subsection (d)(4), where the United States is the named defendant,

service must be made as follows: (1) personal service upon the

United States attorney, an assistant United States attorney, or a

designated clerical employee of the United States attorney in the

district in which the action is brought; (2) registered or

certified mail service to the Attorney General of the United States

in Washington, D.C.; and (3) registered or certified mail service

to the appropriate officer or agency if the action attacks an order

of that officer or agency but does not name the officer or agency

as a defendant. Under subsection (d)(5), where an officer or agency

of the United States is named as a defendant, service must be made

as in subsection (d)(4), except that personal service upon the

officer or agency involved is required.(!16)

The time limit for effecting service in H.R. 7154 would present

significant difficulty to a plaintiff who has to arrange for

personal service upon an officer or agency that may be thousands of

miles away. There is little reason to require different types of

service when the officer or agency is named as a party, and H.R.

7154 therefore conforms the manner of service under subsection

(d)(5) to the manner of service under subsection (d)(4).

SECTION-BY-SECTION ANALYSIS

SECTION 1

Section 1 provides that the short title of the bill is the

"Federal Rules of Civil Procedure Amendments Act of 1982".

SECTION 2

Section 2 of the bill consists of 7 numbered paragraphs, each

amending a different part of Rule 4 of the Federal Rules of Civil

Procedure.

Paragraph (1) deletes the requirement in present Rule 4(a) that a

summons be delivered for service to the marshal or other person

authorized to serve it. As amended by the legislation, Rule 4(a)

provides that the summons be delivered to "the plaintiff or the

plaintiff's attorney, who shall be responsible for prompt service

of the summons and complaint". This change effectuates the policy

proposed by the Supreme Court. See Appendix II, at - (Advisory

Committee Note).

Paragraph (2) amends current Rule 4(c), which deals with the

service of process. New Rule 4(c)(1) requires that all process,

other than a subpoena or a summons and complaint, be served by the

Marshals Service or by a person especially appointed for that

purpose. Thus, the Marshals Service or persons specially appointed

will continue to serve all process other than subpoenas and

summonses and complaints, a policy identical to that proposed by

the Supreme Court. See Appendix II, at 8 (Report of the Judicial

Conference Committee on Rules of Practice and Procedure). The

service of subpoenas is governed by Rule 45,(!17) and the service

of summonses and complaints is governed by new Rule 4(c)(2).

New Rule 4(c)(2)(A) sets forth the general rule that summonses

and complaints shall be served by someone who is at least 18 years

old and not a party to the action or proceeding. This is consistent

with the Court's proposal. Appendix II, at 16 (Advisory Committee

Note). Subparagraphs (B) and (C) of new Rule 4(c)(2) set forth

exceptions to this general rule.

Subparagraph (B) sets forth 3 exceptions to the general rule.

First, subparagraph (B)(i) requires the Marshals Service (or

someone specially appointed by the court) to serve summonses and

complaints on behalf of a party proceeding in forma pauperis or a

seaman authorized to proceed under 28 U.S.C. 1916. This is

identical to the Supreme Court's proposal. See Appendix II, at 3

(text of proposed rule), 16 (Advisory Committee Note). Second,

subparagraph (B)(ii) requires the Marshals Service (or someone

specially appointed by the court) to serve a summons and complaint

when the court orders the marshals to do so in order properly to

effect service in that particular action.(!18) This, except for

nonsubstantive changes in phrasing, is identical to the Supreme

Court's proposal. See Appendix II, at 3 (text of proposed rule), 16

(Advisory Committee Note).

Subparagraph (C) of new Rule 4(c)(2) provides 2 exceptions to the

general rule of service by a nonparty adult. These exceptions apply

only when the summons and complaint is to be served upon persons

described in Rule 4(d)(1) (certain individuals) or Rule 4(d)(3)

(organizations).(!19) First, subparagraph (C)(i) permits service of

a summons and complaint in a manner authorized by the law of the

state in which the court sits. This restates the option to follow

local law currently found in Rule 4(d)(7) and would authorize

service by mail if the state law so allowed. The method of mail

service in that instance would, of course, be the method permitted

by state law.

Second, subparagraph (C)(ii) permits service of a summons and

complaint by regular mail. The sender must send to the defendant,

by first-class mail, postage prepaid, a copy of the summons and

complaint, together with 2 copies of a notice and acknowledgment of

receipt of summons and complaint form and a postage prepaid return

envelope addressed to the sender. If a copy of the notice and

acknowledgment form is not received by the sender within 20 days

after the date of mailing, then service must be made under Rule

4(c)(2)(A) or (B) (i.e., by a nonparty adult or, if the person

qualifies,(!20) by personnel of the Marshals Service or a person

specially appointed by the court) in the manner prescribed by Rule

4(d)(1) or (3) (i.e., personal or substituted service).

New Rule 4(c)(2)(D) permits a court to penalize a person who

avoids service by mail. It authorizes the court to order a person

who does not return the notice and acknowledgment form within 20

days after mailing to pay the costs of service, unless that person

can show good cause for failing to return the form. The purpose of

this provision is to encourage the prompt return of the form so

that the action can move forward without unnecessary delay.

Fairness requires that a person who causes another additional and

unnecessary expense in effecting service ought to reimburse the

party who was forced to bear the additional expense.

Subparagraph (E) of rule 4(c)(2) requires that the notice and

acknowledgment form described in new Rule 4(c)(2)(C)(ii) be

executed under oath or affirmation. This provision tracks the

language of 28 U.S.C. 1746, which permits the use of unsworn

declarations under penalty of perjury whenever an oath or

affirmation is required. Statements made under penalty of perjury

are subject to 18 U.S,C. 1621(2), which provides felony penalties

for someone who "willfully subscribes as true any material matter

which he does not believe to be true". The requirement that the

form be executed under oath or affirmation is intended to encourage

truthful submissions to the court, as the information contained in

the form is important to the parties.(!21)

New Rule 4(c)(3) authorizes the court freely to make special

appointments to serve summonses and complaints under Rule

4(c)(2)(B) and all other process under Rule 4(c)(1). This carries

forward the policy of present Rule 4(c).

Paragraph (3) of section 2 of the bill makes a non-substantive

change in the caption of Rule 4(d) in order to reflect more

accurately the provisions of Rule 4(d). Paragraph (3) also deletes

a provision on service of a summons and complaint pursuant to state

law. This provision is redundant in view of new Rule 4(c)(2)(C)(i).

Paragraph (4) of section 2 of the bill conforms Rule 4(d)(5) to

present Rule 4(d)(4). Rule 4(d)(5) is amended to provide that

service upon a named defendant agency or officer of the United

States shall be made by "sending" a copy of the summons and

complaint "by registered or certified mail" to the defendant.(!22)

Rule 4(d)(5) currently provides for service by "delivering" the

copies to the defendant, but 28 U.S.C. 1391(e) authorizes delivery

upon a defendant agency or officer outside of the district in which

the action is brought by means of certified mail. Hence, the change

is not a marked departure from current practice.

Paragraph (5) of section 2 of the bill amends the caption of Rule

4(e) in order to describe subdivision (e) more accurately.

Paragraph (6) of section 2 of the bill amends Rule 4(g), which

deals with return of service. Present rule 4(g) is not changed

except to provide that, if service is made pursuant to the new

system of mail service (Rule 4(c)(2)(C)(ii)), the plaintiff or the

plaintiff's attorney must file with the court the signed

acknowledgment form returned by the person served.

Paragraph (7) of section 2 of the bill adds new subsection (j) to

provide a time limitation for the service of a summons and

complaint. New Rule 4(j) retains the Supreme Court's requirement

that a summons and complaint be served within 120 days of the

filing of the complaint. See Appendix II, at 18 (Advisory Committee

Note).(!23) The plaintiff must be notified of an effort or

intention to dismiss the action. This notification is mandated by

subsection (j) if the dismissal is being raised on the court's own

initiative and will be provided pursuant to Rule 5 (which requires

service of motions upon the adverse party) if the dismissal is

sought by someone else.(!24) The plaintiff may move under Rule 6(b)

to enlarge the time period. See Appendix II, at 1d. (Advisory

Committee Note). If service is not made within the time period or

enlarged time period, however, and if the plaintiff fails to show

"good cause" for not completing service, then the court must

dismiss the action as to the unserved defendant. The dismissal is

"without prejudice". The term "without prejudice" means that the

dismissal does not constitute an adjudication of the merits of the

complaint. A dismissal "without prejudice" leaves a plaintiff whose

action has been dismissed in the position in which that person

would have been if the action had never been filed.

SECTION 3

Section 3 of the bill amends the Appendix of Forms at the end of

the Federal Rules of Civil Procedure by adding a new form 18A,

"Notice and Acknowledgment for Service by Mail". This new form is

required by new Rule 4(c)(2)(C)(ii), which requires that the notice

and acknowledgment form used with service by regular mail conform

substantially to Form 18A.

Form 18A as set forth in section 3 of the bill is modeled upon a

form used in California.(!25) It contains 2 parts. The first part

is a notice to the person being served that tells that person that

the enclosed summons and complaint is being served pursuant to Rule

4(c)(2)(C)(ii); advises that person to sign and date the

acknowledgment form and indicate the authority to receive service

if the person served is not the party to the action (e.g., the

person served is an officer of the organization being served); and

warns that failure to return the form to the sender within 20 days

may result in the court ordering the party being served to pay the

expenses involved in effecting service. The notice also warns that

if the complaint is not responded to within 20 days, a default

judgment can be entered against the party being served. The notice

is dated under penalty of perjury by the plaintiff or the

plaintiff's attorney.(!26)

The second part of the form contains the acknowledgment of

receipt of the summons and complaint. The person served must

declare on this part of the form, under penalty of perjury, the

date and place of service and the person's authority to receive

service.

SECTION 4

Section 4 of the bill provides that the changes in Rule 4 made by

H.R. 7154 will take effect 45 days after enactment, thereby giving

the bench and bar, as well as other interested persons and

organizations (such as the Marshals Service), an opportunity to

prepare to implement the changes made by the legislation. The

delayed effective date means that service of process issued before

the effective date will be made in accordance with current Rule 4.

Accordingly, all process in the hands of the Marshals Service prior

to the effective date will be served by the Marshals Service under

the present rule.

SECTION 5

Section 5 of the bill provides that the amendments to Rule 4

proposed by the Supreme Court (whose effective date was postponed

by Public Law 97-227) shall not take effect. This is necessary

because under Public Law 97-227 the proposed amendments will take

effect on October 1, 1983.

_______

(!1) The drafting of the rules and amendments is actually done by

a committee of the Judicial Conference of the United States. In the

case of the Federal Rules of Civil Procedure, the initial draft is

prepared by the Advisory Committee on Civil Rules. The Advisory

Committee's draft is then reviewed by the Committee on Rules of

Practice and Procedure, which must give its approval to the draft.

Any draft approved by that committee is forwarded to the Judicial

Conference. If the Judicial Conference approves the draft, it

forwards the draft to the Supreme Court. The Judicial Conference's

role in the rule-making process is defined by 28 U.S.C. 331.

For background information about how the Judicial Conference

committees operate, see Wright, "Procedural Reform: Its Limitation

and Its Future," 1 Ga.L.Rev. 563, 565-66 (1967) (civil rules);

statement of United States District Judge Roszel C. Thomsen,

Hearings on Proposed Amendments to the Federal Rules of Criminal

Procedure Before the Subcommittee on Criminal Justice of the House

Committee on the Judiciary, 93d Cong., 2d Sess. at 25 (1974)

(criminal rules); statement of United States Circuit Judge J.

Edward Lumbard, id. at 203 (criminal rules); J. Weinstein, Reform

of Federal Court Rulemaking Procedure (1977); Weinstein, "Reform of

Federal Rulemaking Procedures," 76 Colum.L.Rev. 905 (1976).

(!2) All of the other amendments, including all of the proposed

amendments to the Federal Rules of Criminal Procedure and the Rules

and Forms Governing Proceedings in the United States District

Courts under sections 2254 and 2255 of Title 28, United States

Code, took effect on August 1, 1982, as scheduled.

(!3) The President has urged Congress to act promptly. See

President's Statement on Signing H.R. 6663 into Law, 18 Weekly

Comp. of Pres. Doc. 982 (August 2, 1982).

(!4) Where service of a summons is to be made upon a party who is

neither an inhabitant of, nor found within, the state where the

district court sits, subsection (e) authorizes service under a

state statute or rule of court that provides for service upon such

a party. This would authorize mail service if the state statute or

rule of court provided for service by mail.

(!5) The Court's proposal authorized service by the Marshals

Service in other situations. This authority, however, was not seen

as thwarting the underlying policy of limiting the use of marshals.

See Appendix II, at 16, 17 (Advisory Committee Note).

(!6) Appendix I, at 2 (letter of Assistant Attorney General

Robert A. McConnell).

(!7) The provisions of H.R. 7154 conflict with 28 U.S.C. 569(b)

because the latter is a broader command to marshals to serve all

federal court process. As a later statutory enactment, however,

H.R. 7154 supersedes 28 U.S.C. 569(b), thereby achieving the goal

of reducing the role of marshals.

(!8) Proposed Rule 4(d)(8) provided that "Service . . . shall not

be the basis for the entry of a default or a judgment by default

unless the record contains a return receipt showing acceptance by

the defendant or a returned envelope showing refusal of the process

by the defendant." This provision reflects a desire to preclude

default judgments on unclaimed mail. See Appendix II, at 7 (Report

of the Committee on Rules of Practice and Procedure).

The interpretation of Rule 4(d)(8) to require a refusal of

delivery in order to have a basis for a default judgment, while

undoubtedly the interpretation intended and the interpretation that

reaches the fairest result, may not be the only possible

interpretation. Since a default judgment can be entered for

defendant's failure to respond to the complaint once defendant has

been served and the time to answer the complaint has run, it can be

argued that a default judgment can be obtained where the mail was

unclaimed because proposed subsection (j), which authorized

dismissal of a complaint not served within 120 days, provided that

mail service would be deemed made "on the date on which the process

was accepted, refused, or returned as unclaimed" (emphasis added).

(!9) See p. 15 infra.

(!10) Proponents of the California system of mail service, in

particular, saw no reason to supplant California's proven method of

mail service with a certified mail service that they believed

likely to result in default judgments without actual notice to

defendants. See House Report No. 97-662, at 3 (1982).

(!11) The parties may, of course, stipulate to service, as is

frequently done now.

(!12) While return of the letter as unclaimed was deemed service

for the purpose of determining whether the plaintiff's action could

be dismissed, return of the letter as unclaimed was not service for

the purpose of entry of a default judgment against the defendant.

See note 8 supra.

(!13) The law governing the tolling of a statute of limitation

depends upon the type of civil action involved. In adversity

action, state law governs tolling. Walker v. Armco Steel Corp., 446

U.S. 740 (1980). In Walker, plaintiff had filed his complaint and

thereby commenced the action under Rule 3 of the Federal Rules of

Civil Procedure within the statutory period. He did not, however,

serve the summons and complaint until after the statutory period

had run. The Court held that state law (which required both filing

and service within the statutory period) governed, barring

plaintiff's action.

In the federal question action, the courts of appeals have

generally held that Rule 3 governs, so that the filing of the

complaint tolls a statute of limitation. United States v. Wahl, 538

F.2d 285 (6th Cir. 1978); Windbrooke Dev. Co. v. Environmental

Enterprises Inc. of Fla., 524 F.2d 461 (5th Cir. 1975);

Metropolitan Paving Co. v. International Union of Operating

Engineers, 439 F.2d 300 (10th Cir. 1971); Moore Co. v. Sid

Richardson Carbon & Gasoline Co., 347 F.2d 921 (8th Cir.), cert.

denied, 383 U.S. 925, reh. denied, 384 U.S. 914 (1965); Hoffman v.

Halden, 268 F.2d 280 (9th Cir. 1959). The continued validity of

this line of cases, however, must be questioned in light of the

Walker case, even though the Court in that case expressly reserved

judgment about federal question actions, see Walker v. Armco Steel

Corp., 446 U.S. 741, 751 n.11 (1980).

(!14) The same result obtains even if service occurs within the

120 day period, if the service occurs after the statute of

limitation has run.

(!15) See p. 19 infra.

(!16) See p. 17 infra.

(!17) Rule 45(c) provides that "A subpoena may be served by the

marshal, by his deputy, or by any other person who is not a party

and is not less than 18 years of age."

(!18) Some litigators have voiced concern that there may be

situations in which personal service by someone other than a member

of the Marshals Service may present a risk of injury to the person

attempting to make the service. For example, a hostile defendant

may have a history of injuring persons attempting to serve process.

Federal judges undoubtedly will consider the risk of harm to

private persons who would be making personal service when deciding

whether to order the Marshals Service to make service under Rule

4(c)(2)(B)(iii).

(!19) The methods of service authorized by Rule 4(c)(2)(C) may be

invoked by any person seeking to effect service. Thus, a nonparty

adult who receives the summons and complaint for service under Rule

4(c)(1) may serve them personally or by mail in the manner

authorized by Rule 4(c)(2)(C)(ii). Similarly, the Marshals Service

may utilize the mail service authorized by Rule 4(c)(2)(C)(ii) when

serving a summons and complaint under Rule 4(c)(2)(B)(i)(iii). When

serving a summons and complaint under Rule 4(c)(2)(B)(ii), however,

the Marshals Service must serve in the manner set forth in the

court's order. If no particular manner of service is specified,

then the Marshals Service may utilize Rule 4(c)(2)(C)(ii). It would

not seem to be appropriate, however, for the Marshals Service to

utilize Rule 4(c)(2)(C)(ii) in a situation where a previous attempt

to serve by mail failed. Thus, it would not seem to be appropriate

for the Marshals Service to attempt service by regular mail when

serving a summons and complaint on behalf of a plaintiff who is

proceeding in forma pauperis if that plaintiff previously attempted

unsuccessfully to serve the defendant by mail.

(!20) To obtain service by personnel of the Marshals Service or

someone specially appointed by the court, a plaintiff who has

unsuccessfully attempted mail service under Rule 4(c)(2)(C)(ii)

must meet the conditions of Rule 4(c)(2)(B) - for example, the

plaintiff must be proceeding in forma pauperis.

(!21) For example, the sender must state the date of mailing on

the form. If the form is not returned to the sender within 20 days

of that date, then the plaintiff must serve the defendant in

another manner and the defendant may be liable for the costs of

such service. Thus, a defendant would suffer the consequences of a

misstatement about the date of mailing.

(!22) See p. 12 supra.

(!23) The 120 day period begins to run upon the filing of each

complaint. Thus, where a defendant files a cross-claim against the

plaintiff, the 120 day period begins to run upon the filing of the

cross-complaint, not upon the filing of the plaintiff's complaint

initiating the action.

(!24) The person who may move to dismiss can be the putative

defendant (i.e., the person named as defendant in the complaint

filed with the court) or, in multi-party actions, another party to

the action. (If the putative defendant moves to dismiss and the

failure to effect service is due to that person's evasion of

service, a court should not dismiss because the plaintiff has "good

cause" for not completing service.)

(!25) See Cal. Civ. Pro. Sec. 415.30 (West 1973).

(!26) See p. 16 supra.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Purposes of Revision. The general purpose of this revision is to

facilitate the service of the summons and complaint. The revised

rule explicitly authorizes a means for service of the summons and

complaint on any defendant. While the methods of service so

authorized always provide appropriate notice to persons against

whom claims are made, effective service under this rule does not

assure that personal jurisdiction has been established over the

defendant served.

First, the revised rule authorizes the use of any means of

service provided by the law not only of the forum state, but also

of the state in which a defendant is served, unless the defendant

is a minor or incompetent.

Second, the revised rule clarifies and enhances the cost-saving

practice of securing the assent of the defendant to dispense with

actual service of the summons and complaint. This practice was

introduced to the rule in 1983 by an act of Congress authorizing

"service-by-mail," a procedure that effects economic service with

cooperation of the defendant. Defendants that magnify costs of

service by requiring expensive service not necessary to achieve

full notice of an action brought against them are required to bear

the wasteful costs. This provision is made available in actions

against defendants who cannot be served in the districts in which

the actions are brought.

Third, the revision reduces the hazard of commencing an action

against the United States or its officers, agencies, and

corporations. A party failing to effect service on all the offices

of the United States as required by the rule is assured adequate

time to cure defects in service.

Fourth, the revision calls attention to the important effect of

the Hague Convention and other treaties bearing on service of

documents in foreign countries and favors the use of

internationally agreed means of service. In some respects, these

treaties have facilitated service in foreign countries but are not

fully known to the bar.

Finally, the revised rule extends the reach of federal courts to

impose jurisdiction over the person of all defendants against whom

federal law claims are made and who can be constitutionally

subjected to the jurisdiction of the courts of the United States.

The present territorial limits on the effectiveness of service to

subject a defendant to the jurisdiction of the court over the

defendant's person are retained for all actions in which there is a

state in which personal jurisdiction can be asserted consistently

with state law and the Fourteenth Amendment. A new provision

enables district courts to exercise jurisdiction, if permissible

under the Constitution and not precluded by statute, when a federal

claim is made against a defendant not subject to the jurisdiction

of any single state.

The revised rule is reorganized to make its provisions more

accessible to those not familiar with all of them. Additional

subdivisions in this rule allow for more captions; several overlaps

among subdivisions are eliminated; and several disconnected

provisions are removed, to be relocated in a new Rule 4.1.

The Caption of the Rule. Prior to this revision, Rule 4 was

entitled "Process" and applied to the service of not only the

summons but also other process as well, although these are not

covered by the revised rule. Service of process in eminent domain

proceedings is governed by Rule 71A. Service of a subpoena is

governed by Rule 45, and service of papers such as orders, motions,

notices, pleadings, and other documents is governed by Rule 5.

The revised rule is entitled "Summons" and applies only to that

form of legal process. Unless service of the summons is waived, a

summons must be served whenever a person is joined as a party

against whom a claim is made. Those few provisions of the former

rule which relate specifically to service of process other than a

summons are relocated in Rule 4.1 in order to simplify the text of

this rule.

Subdivision (a). Revised subdivision (a) contains most of the

language of the former subdivision (b). The second sentence of the

former subdivision (b) has been stricken, so that the federal court

summons will be the same in all cases. Few states now employ

distinctive requirements of form for a summons and the

applicability of such a requirement in federal court can only serve

as a trap for an unwary party or attorney. A sentence is added to

this subdivision authorizing an amendment of a summons. This

sentence replaces the rarely used former subdivision 4(h). See 4A

Wright & Miller, Federal Practice and Procedure Sec. 1131 (2d ed.

1987).

Subdivision (b). Revised subdivision (b) replaces the former

subdivision (a). The revised text makes clear that the

responsibility for filling in the summons falls on the plaintiff,

not the clerk of the court. If there are multiple defendants, the

plaintiff may secure issuance of a summons for each defendant, or

may serve copies of a single original bearing the names of multiple

defendants if the addressee of the summons is effectively

identified.

Subdivision (c). Paragraph (1) of revised subdivision (c) retains

language from the former subdivision (d)(1). Paragraph (2) retains

language from the former subdivision (a), and adds an appropriate

caution regarding the time limit for service set forth in

subdivision (m).

The 1983 revision of Rule 4 relieved the marshals' offices of

much of the burden of serving the summons. Subdivision (c)

eliminates the requirement for service by the marshal's office in

actions in which the party seeking service is the United States.

The United States, like other civil litigants, is now permitted to

designate any person who is 18 years of age and not a party to

serve its summons.

The court remains obligated to appoint a marshal, a deputy, or

some other person to effect service of a summons in two classes of

cases specified by statute: actions brought in forma pauperis or by

a seaman. 28 U.S.C. Secs. 1915, 1916. The court also retains

discretion to appoint a process server on motion of a party. If a

law enforcement presence appears to be necessary or advisable to

keep the peace, the court should appoint a marshal or deputy or

other official person to make the service. The Department of

Justice may also call upon the Marshals Service to perform services

in actions brought by the United States. 28 U.S.C. Sec. 651.

Subdivision (d). This text is new, but is substantially derived

from the former subdivisions (c)(2)(C) and (D), added to the rule

by Congress in 1983. The aims of the provision are to eliminate the

costs of service of a summons on many parties and to foster

cooperation among adversaries and counsel. The rule operates to

impose upon the defendant those costs that could have been avoided

if the defendant had cooperated reasonably in the manner

prescribed. This device is useful in dealing with defendants who

are furtive, who reside in places not easily reached by process

servers, or who are outside the United States and can be served

only at substantial and unnecessary expense. Illustratively, there

is no useful purpose achieved by requiring a plaintiff to comply

with all the formalities of service in a foreign country, including

costs of translation, when suing a defendant manufacturer, fluent

in English, whose products are widely distributed in the United

States. See Bankston v. Toyota Motor Corp., 889 F.2d 172 (8th Cir.

1989).

The former text described this process as service-by-mail. This

language misled some plaintiffs into thinking that service could be

effected by mail without the affirmative cooperation of the

defendant. E.g., Gulley v. Mayo Foundation, 886 F.2d 161 (8th Cir.

1989). It is more accurate to describe the communication sent to

the defendant as a request for a waiver of formal service.

The request for waiver of service may be sent only to defendants

subject to service under subdivision (e), (f), or (h). The United

States is not expected to waive service for the reason that its

mail receiving facilities are inadequate to assure that the notice

is actually received by the correct person in the Department of

Justice. The same principle is applied to agencies, corporations,

and officers of the United States and to other governments and

entities subject to service under subdivision (j). Moreover, there

are policy reasons why governmental entities should not be

confronted with the potential for bearing costs of service in cases

in which they ultimately prevail. Infants or incompetent persons

likewise are not called upon to waive service because, due to their

presumed inability to understand the request and its consequences,

they must generally be served through fiduciaries.

It was unclear whether the former rule authorized mailing of a

request for "acknowledgement of service" to defendants outside the

forum state. See 1 R. Casad, Jurisdiction in Civil Actions (2d Ed.)

5-29, 30 (1991) and cases cited. But, as Professor Casad observed,

there was no reason not to employ this device in an effort to

obtain service outside the state, and there are many instances in

which it was in fact so used, with respect both to defendants

within the United States and to defendants in other countries.

The opportunity for waiver has distinct advantages to a foreign

defendant. By waiving service, the defendant can reduce the costs

that may ultimately be taxed against it if unsuccessful in the

lawsuit, including the sometimes substantial expense of translation

that may be wholly unnecessary for defendants fluent in English.

Moreover, a foreign defendant that waives service is afforded

substantially more time to defend against the action than if it had

been formally served: under Rule 12, a defendant ordinarily has

only 20 days after service in which to file its answer or raise

objections by motion, but by signing a waiver it is allowed 90 days

after the date the request for waiver was mailed in which to submit

its defenses. Because of the additional time needed for mailing and

the unreliability of some foreign mail services, a period of 60

days (rather than the 30 days required for domestic transmissions)

is provided for a return of a waiver sent to a foreign country.

It is hoped that, since transmission of the notice and waiver

forms is a private nonjudicial act, does not purport to effect

service, and is not accompanied by any summons or directive from a

court, use of the procedure will not offend foreign sovereignties,

even those that have withheld their assent to formal service by

mail or have objected to the "service-by-mail" provisions of the

former rule. Unless the addressee consents, receipt of the request

under the revised rule does not give rise to any obligation to

answer the lawsuit, does not provide a basis for default judgment,

and does not suspend the statute of limitations in those states

where the period continues to run until service. Nor are there any

adverse consequences to a foreign defendant, since the provisions

for shifting the expense of service to a defendant that declines to

waive service apply only if the plaintiff and defendant are both

located in the United States.

With respect to a defendant located in a foreign country like the

United Kingdom, which accepts documents in English, whose Central

Authority acts promptly in effecting service, and whose policies

discourage its residents from waiving formal service, there will be

little reason for a plaintiff to send the notice and request under

subdivision (d) rather than use convention methods. On the other

hand, the procedure offers significant potential benefits to a

plaintiff when suing a defendant that, though fluent in English, is

located in a country where, as a condition to formal service under

a convention, documents must be translated into another language or

where formal service will be otherwise costly or time-consuming.

Paragraph (1) is explicit that a timely waiver of service of a

summons does not prejudice the right of a defendant to object by

means of a motion authorized by Rule 12(b)(2) to the absence of

jurisdiction over the defendant's person, or to assert other

defenses that may be available. The only issues eliminated are

those involving the sufficiency of the summons or the sufficiency

of the method by which it is served.

Paragraph (2) states what the present rule implies: the defendant

has a duty to avoid costs associated with the service of a summons

not needed to inform the defendant regarding the commencement of an

action. The text of the rule also sets forth the requirements for a

Notice and Request for Waiver sufficient to put the cost-shifting

provision in place. These requirements are illustrated in Forms 1A

and 1B, which replace the former Form 18-A.

Paragraph (2)(A) is explicit that a request for waiver of service

by a corporate defendant must be addressed to a person qualified to

receive service. The general mail rooms of large organizations

cannot be required to identify the appropriate individual recipient

for an institutional summons.

Paragraph (2)(B) permits the use of alternatives to the United

States mails in sending the Notice and Request. While private

messenger services or electronic communications may be more

expensive than the mail, they may be equally reliable and on

occasion more convenient to the parties. Especially with respect to

transmissions to foreign countries, alternative means may be

desirable, for in some countries facsimile transmission is the most

efficient and economical means of communication. If electronic

means such as facsimile transmission are employed, the sender

should maintain a record of the transmission to assure proof of

transmission if receipt is denied, but a party receiving such a

transmission has a duty to cooperate and cannot avoid liability for

the resulting cost of formal service if the transmission is

prevented at the point of receipt.

A defendant failing to comply with a request for waiver shall be

given an opportunity to show good cause for the failure, but

sufficient cause should be rare. It is not a good cause for failure

to waive service that the claim is unjust or that the court lacks

jurisdiction. Sufficient cause not to shift the cost of service

would exist, however, if the defendant did not receive the request

or was insufficiently literate in English to understand it. It

should be noted that the provisions for shifting the cost of

service apply only if the plaintiff and the defendant are both

located in the United States, and accordingly a foreign defendant

need not show "good cause" for its failure to waive service.

Paragraph (3) extends the time for answer if, before being served

with process, the defendant waives formal service. The extension is

intended to serve as an inducement to waive service and to assure

that a defendant will not gain any delay by declining to waive

service and thereby causing the additional time needed to effect

service. By waiving service, a defendant is not called upon to

respond to the complaint until 60 days from the date the notice was

sent to it - 90 days if the notice was sent to a foreign country -

rather than within the 20 day period from date of service specified

in Rule 12.

Paragraph (4) clarifies the effective date of service when

service is waived; the provision is needed to resolve an issue

arising when applicable law requires service of process to toll the

statute of limitations. E.g., Morse v. Elmira Country Club, 752

F.2d 35 (2d Cir. 1984). Cf. Walker v. Armco Steel Corp., 446 U.S.

740 (1980).

The provisions in former subdivision (c)(2)(C)(ii) of this rule

may have been misleading to some parties. Some plaintiffs, not

reading the rule carefully, supposed that receipt by the defendant

of the mailed complaint had the effect both of establishing the

jurisdiction of the court over the defendant's person and of

tolling the statute of limitations in actions in which service of

the summons is required to toll the limitations period. The revised

rule is clear that, if the waiver is not returned and filed, the

limitations period under such a law is not tolled and the action

will not otherwise proceed until formal service of process is

effected.

Some state limitations laws may toll an otherwise applicable

statute at the time when the defendant receives notice of the

action. Nevertheless, the device of requested waiver of service is

not suitable if a limitations period which is about to expire is

not tolled by filing the action. Unless there is ample time, the

plaintiff should proceed directly to the formal methods for service

identified in subdivisions (e), (f), or (h).

The procedure of requesting waiver of service should also not be

used if the time for service under subdivision (m) will expire

before the date on which the waiver must be returned. While a

plaintiff has been allowed additional time for service in that

situation, e.g., Prather v. Raymond Constr. Co., 570 F. Supp. 278

(N.D. Ga. 1983), the court could refuse a request for additional

time unless the defendant appears to have evaded service pursuant

to subdivision (e) or (h). It may be noted that the presumptive

time limit for service under subdivision (m) does not apply to

service in a foreign country.

Paragraph (5) is a cost-shifting provision retained from the

former rule. The costs that may be imposed on the defendant could

include, for example, the cost of the time of a process server

required to make contact with a defendant residing in a guarded

apartment house or residential development. The paragraph is

explicit that the costs of enforcing the cost-shifting provision

are themselves recoverable from a defendant who fails to return the

waiver. In the absence of such a provision, the purpose of the rule

would be frustrated by the cost of its enforcement, which is likely

to be high in relation to the small benefit secured by the

plaintiff.

Some plaintiffs may send a notice and request for waiver and,

without waiting for return of the waiver, also proceed with efforts

to effect formal service on the defendant. To discourage this

practice, the cost-shifting provisions in paragraphs (2) and (5)

are limited to costs of effecting service incurred after the time

expires for the defendant to return the waiver. Moreover, by

returning the waiver within the time allowed and before being

served with process, a defendant receives the benefit of the longer

period for responding to the complaint afforded for waivers under

paragraph (3).

Subdivision (e). This subdivision replaces former subdivisions

(c)(2)(C)(i) and (d)(1). It provides a means for service of summons

on individuals within a judicial district of the United States.

Together with subdivision (f), it provides for service on persons

anywhere, subject to constitutional and statutory constraints.

Service of the summons under this subdivision does not

conclusively establish the jurisdiction of the court over the

person of the defendant. A defendant may assert the territorial

limits of the court's reach set forth in subdivision (k), including

the constitutional limitations that may be imposed by the Due

Process Clause of the Fifth Amendment.

Paragraph (1) authorizes service in any judicial district in

conformity with state law. This paragraph sets forth the language

of former subdivision (c)(2)(C)(i), which authorized the use of the

law of the state in which the district court sits, but adds as an

alternative the use of the law of the state in which the service is

effected.

Paragraph (2) retains the text of the former subdivision (d)(1)

and authorizes the use of the familiar methods of personal or abode

service or service on an authorized agent in any judicial district.

To conform to these provisions, the former subdivision (e)

bearing on proceedings against parties not found within the state

is stricken. Likewise stricken is the first sentence of the former

subdivision (f), which had restricted the authority of the federal

process server to the state in which the district court sits.

Subdivision (f). This subdivision provides for service on

individuals who are in a foreign country, replacing the former

subdivision (i) that was added to Rule 4 in 1963. Reflecting the

pattern of Rule 4 in incorporating state law limitations on the

exercise of jurisdiction over persons, the former subdivision (i)

limited service outside the United States to cases in which

extraterritorial service was authorized by state or federal law.

The new rule eliminates the requirement of explicit authorization.

On occasion, service in a foreign country was held to be improper

for lack of statutory authority. E.g., Martens v. Winder, 341 F.2d

197 (9th Cir.), cert. denied, 382 U.S. 937 (1965). This authority,

however, was found to exist by implication. E.g., SEC v. VTR, Inc.,

39 F.R.D. 19 (S.D.N.Y. 1966). Given the substantial increase in the

number of international transactions and events that are the

subject of litigation in federal courts, it is appropriate to infer

a general legislative authority to effect service on defendants in

a foreign country.

A secondary effect of this provision for foreign service of a

federal summons is to facilitate the use of federal long-arm law in

actions brought to enforce the federal law against defendants who

cannot be served under any state law but who can be

constitutionally subjected to the jurisdiction of the federal

court. Such a provision is set forth in paragraph (2) of

subdivision (k) of this rule, applicable only to persons not

subject to the territorial jurisdiction of any particular state.

Paragraph (1) gives effect to the Hague Convention on the Service

Abroad of Judicial and Extrajudicial Documents, which entered into

force for the United States on February 10, 1969. See 28 U.S.C.A.,

Fed.R.Civ.P. 4 (Supp. 1986). This Convention is an important means

of dealing with problems of service in a foreign country. See

generally 1 B. Ristau, International Judicial Assistance Secs.

4-1-1 to 4-5-2 (1990). Use of the Convention procedures, when

available, is mandatory if documents must be transmitted abroad to

effect service. See Volkswagenwerk Aktiengesellschaft v. Schlunk,

486 U.S. 694 (1988) (noting that voluntary use of these procedures

may be desirable even when service could constitutionally be

effected in another manner); J. Weis, The Federal Rules and the

Hague Conventions: Concerns of Conformity and Comity, 50 U. Pitt.

L. Rev. 903 (1989). Therefore, this paragraph provides that, when

service is to be effected outside a judicial district of the United

States, the methods of service appropriate under an applicable

treaty shall be employed if available and if the treaty so

requires.

The Hague Convention furnishes safeguards against the abridgment

of rights of parties through inadequate notice. Article 15 provides

for verification of actual notice or a demonstration that process

was served by a method prescribed by the internal laws of the

foreign state before a default judgment may be entered. Article 16

of the Convention also enables the judge to extend the time for

appeal after judgment if the defendant shows a lack of adequate

notice either to defend or to appeal the judgment, or has disclosed

a prima facie case on the merits.

The Hague Convention does not specify a time within which a

foreign country's Central Authority must effect service, but

Article 15 does provide that alternate methods may be used if a

Central Authority does not respond within six months. Generally, a

Central Authority can be expected to respond much more quickly than

that limit might permit, but there have been occasions when the

signatory state was dilatory or refused to cooperate for

substantive reasons. In such cases, resort may be had to the

provision set forth in subdivision (f)(3).

Two minor changes in the text reflect the Hague Convention.

First, the term "letter of request" has been added. Although these

words are synonymous with "letter rogatory," "letter of request" is

preferred in modern usage. The provision should not be interpreted

to authorize use of a letter of request when there is in fact no

treaty obligation on the receiving country to honor such a request

from this country or when the United States does not extend

diplomatic recognition to the foreign nation. Second, the passage

formerly found in subdivision (i)(1)(B), "when service in either

case is reasonably calculated to give actual notice," has been

relocated.

Paragraph (2) provides alternative methods for use when

internationally agreed methods are not intended to be exclusive, or

where there is no international agreement applicable. It contains

most of the language formerly set forth in subdivision (i) of the

rule. Service by methods that would violate foreign law is not

generally authorized. Subparagraphs (A) and (B) prescribe the more

appropriate methods for conforming to local practice or using a

local authority. Subparagraph (C) prescribes other methods

authorized by the former rule.

Paragraph (3) authorizes the court to approve other methods of

service not prohibited by international agreements. The Hague

Convention, for example, authorizes special forms of service in

cases of urgency if convention methods will not permit service

within the time required by the circumstances. Other circumstances

that might justify the use of additional methods include the

failure of the foreign country's Central Authority to effect

service within the six-month period provided by the Convention, or

the refusal of the Central Authority to serve a complaint seeking

punitive damages or to enforce the antitrust laws of the United

States. In such cases, the court may direct a special method of

service not explicitly authorized by international agreement if not

prohibited by the agreement. Inasmuch as our Constitution requires

that reasonable notice be given, an earnest effort should be made

to devise a method of communication that is consistent with due

process and minimizes offense to foreign law. A court may in some

instances specially authorize use of ordinary mail. Cf. Levin v.

Ruby Trading Corp., 248 F. Supp. 537 (S.D.N.Y. 1965).

Subdivision (g). This subdivision retains the text of former

subdivision (d)(2). Provision is made for service upon an infant or

incompetent person in a foreign country.

Subdivision (h). This subdivision retains the text of former

subdivision (d)(3), with changes reflecting those made in

subdivision (e). It also contains the provisions for service on a

corporation or association in a foreign country, as formerly found

in subdivision (i).

Frequent use should be made of the Notice and Request procedure

set forth in subdivision (d) in actions against corporations. Care

must be taken, however, to address the request to an individual

officer or authorized agent of the corporation. It is not effective

use of the Notice and Request procedure if the mail is sent

undirected to the mail room of the organization.

Subdivision (i). This subdivision retains much of the text of

former subdivisions (d)(4) and (d)(5). Paragraph (1) provides for

service of a summons on the United States; it amends former

subdivision (d)(4) to permit the United States attorney to be

served by registered or certified mail. The rule does not authorize

the use of the Notice and Request procedure of revised subdivision

(d) when the United States is the defendant. To assure proper

handling of mail in the United States attorney's office, the

authorized mail service must be specifically addressed to the civil

process clerk of the office of the United States attorney.

Paragraph (2) replaces former subdivision (d)(5). Paragraph (3)

saves the plaintiff from the hazard of losing a substantive right

because of failure to comply with the complex requirements of

multiple service under this subdivision. That risk has proved to be

more than nominal. E.g., Whale v. United States, 792 F.2d 951 (9th

Cir. 1986). This provision should be read in connection with the

provisions of subdivision (c) of Rule 15 to preclude the loss of

substantive rights against the United States or its agencies,

corporations, or officers resulting from a plaintiff's failure to

correctly identify and serve all the persons who should be named or

served.

Subdivision (j). This subdivision retains the text of former

subdivision (d)(6) without material change. The waiver-of-service

provision is also inapplicable to actions against governments

subject to service pursuant to this subdivision.

The revision adds a new paragraph (1) referring to the statute

governing service of a summons on a foreign state and its political

subdivisions, agencies, and instrumentalities, the Foreign

Sovereign Immunities Act of 1976, 28 U.S.C. Sec. 1608. The caption

of the subdivision reflects that change.

Subdivision (k). This subdivision replaces the former subdivision

(f), with no change in the title. Paragraph (1) retains the

substance of the former rule in explicitly authorizing the exercise

of personal jurisdiction over persons who can be reached under

state long-arm law, the "100-mile bulge" provision added in 1963,

or the federal interpleader act. Paragraph (1)(D) is new, but

merely calls attention to federal legislation that may provide for

nationwide or even world-wide service of process in cases arising

under particular federal laws. Congress has provided for nationwide

service of process and full exercise of territorial jurisdiction by

all district courts with respect to specified federal actions. See

1 R. Casad, Jurisdiction in Civil Actions (2d Ed.) chap. 5 (1991).

Paragraph (2) is new. It authorizes the exercise of territorial

jurisdiction over the person of any defendant against whom is made

a claim arising under any federal law if that person is subject to

personal jurisdiction in no state. This addition is a companion to

the amendments made in revised subdivisions (e) and (f).

This paragraph corrects a gap in the enforcement of federal law.

Under the former rule, a problem was presented when the defendant

was a non-resident of the United States having contacts with the

United States sufficient to justify the application of United

States law and to satisfy federal standards of forum selection, but

having insufficient contact with any single state to support

jurisdiction under state long-arm legislation or meet the

requirements of the Fourteenth Amendment limitation on state court

territorial jurisdiction. In such cases, the defendant was shielded

from the enforcement of federal law by the fortuity of a favorable

limitation on the power of state courts, which was incorporated

into the federal practice by the former rule. In this respect, the

revision responds to the suggestion of the Supreme Court made in

Omni Capital Int'l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 111

(1987).

There remain constitutional limitations on the exercise of

territorial jurisdiction by federal courts over persons outside the

United States. These restrictions arise from the Fifth Amendment

rather than from the Fourteenth Amendment, which limits state-court

reach and which was incorporated into federal practice by the

reference to state law in the text of the former subdivision (e)

that is deleted by this revision. The Fifth Amendment requires that

any defendant have affiliating contacts with the United States

sufficient to justify the exercise of personal jurisdiction over

that party. Cf. Wells Fargo & Co. v. Wells Fargo Express Co., 556

F.2d 406, 418 (9th Cir. 1977). There also may be a further Fifth

Amendment constraint in that a plaintiff's forum selection might be

so inconvenient to a defendant that it would be a denial of "fair

play and substantial justice" required by the due process clause,

even though the defendant had significant affiliating contacts with

the United States. See DeJames v. Magnificent Carriers, 654 F.2d

280, 286 n.3 (3rd Cir.), cert. denied, 454 U.S. 1085 (1981).

Compare World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,

293-294 (1980); Insurance Corp. of Ireland v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 702-03 (1982); Burger King Corp.

v. Rudzewicz, 471 U.S. 462, 476-78 (1985); Asahi Metal Indus. v.

Superior Court of Cal., Solano County, 480 U.S. 102, 108-13 (1987).

See generally R. Lusardi, Nationwide Service of Process: Due

Process Limitations on the Power of the Sovereign, 33 Vill. L. Rev.

1 (1988).

This provision does not affect the operation of federal venue

legislation. See generally 28 U.S.C. Sec. 1391. Nor does it affect

the operation of federal law providing for the change of venue. 28

U.S.C. Secs. 1404, 1406. The availability of transfer for fairness

and convenience under Sec. 1404 should preclude most conflicts

between the full exercise of territorial jurisdiction permitted by

this rule and the Fifth Amendment requirement of "fair play and

substantial justice."

The district court should be especially scrupulous to protect

aliens who reside in a foreign country from forum selections so

onerous that injustice could result. "[G]reat care and reserve

should be exercised when extending our notions of personal

jurisdiction into the international field." Asahi Metal Indus. v.

Superior Court of Cal., Solano County, 480 U.S. 102, 115 (1987),

quoting United States v. First Nat'l City Bank, 379 U.S. 378, 404

(1965) (Harlan, J., dissenting).

This narrow extension of the federal reach applies only if a

claim is made against the defendant under federal law. It does not

establish personal jurisdiction if the only claims are those

arising under state law or the law of another country, even though

there might be diversity or alienage subject matter jurisdiction as

to such claims. If, however, personal jurisdiction is established

under this paragraph with respect to a federal claim, then 28

U.S.C. Sec. 1367(a) provides supplemental jurisdiction over related

claims against that defendant, subject to the court's discretion to

decline exercise of that jurisdiction under 28 U.S.C. Sec. 1367(c).

Subdivision (l). This subdivision assembles in one place all the

provisions of the present rule bearing on proof of service. No

material change in the rule is effected. The provision that proof

of service can be amended by leave of court is retained from the

former subdivision (h). See generally 4A Wright & Miller, Federal

Practice and Procedure Sec. 1132 (2d ed. 1987).

Subdivision (m). This subdivision retains much of the language of

the present subdivision (j).

The new subdivision explicitly provides that the court shall

allow additional time if there is good cause for the plaintiff's

failure to effect service in the prescribed 120 days, and

authorizes the court to relieve a plaintiff of the consequences of

an application of this subdivision even if there is no good cause

shown. Such relief formerly was afforded in some cases, partly in

reliance on Rule 6(b). Relief may be justified, for example, if the

applicable statute of limitations would bar the refiled action, or

if the defendant is evading service or conceals a defect in

attempted service. E.g., Ditkof v. Owens-Illinois, Inc., 114 F.R.D.

104 (E.D. Mich. 1987). A specific instance of good cause is set

forth in paragraph (3) of this rule, which provides for extensions

if necessary to correct oversights in compliance with the

requirements of multiple service in actions against the United

States or its officers, agencies, and corporations. The district

court should also take care to protect pro se plaintiffs from

consequences of confusion or delay attending the resolution of an

in forma pauperis petition. Robinson v. America's Best Contacts &

Eyeglasses, 876 F.2d 596 (7th Cir. 1989).

The 1983 revision of this subdivision referred to the "party on

whose behalf such service was required," rather than to the

"plaintiff," a term used generically elsewhere in this rule to

refer to any party initiating a claim against a person who is not a

party to the action. To simplify the text, the revision returns to

the usual practice in the rule of referring simply to the plaintiff

even though its principles apply with equal force to defendants who

may assert claims against non-parties under Rules 13(h), 14, 19,

20, or 21.

Subdivision (n). This subdivision provides for in rem and

quasi-in-rem jurisdiction. Paragraph (1) incorporates any

requirements of 28 U.S.C. Sec. 1655 or similar provisions bearing

on seizures or liens.

Paragraph (2) provides for other uses of quasi-in-rem

jurisdiction but limits its use to exigent circumstances.

Provisional remedies may be employed as a means to secure

jurisdiction over the property of a defendant whose person is not

within reach of the court, but occasions for the use of this

provision should be rare, as where the defendant is a fugitive or

assets are in imminent danger of disappearing. Until 1963, it was

not possible under Rule 4 to assert jurisdiction in a federal court

over the property of a defendant not personally served. The 1963

amendment to subdivision (e) authorized the use of state law

procedures authorizing seizures of assets as a basis for

jurisdiction. Given the liberal availability of long-arm

jurisdiction, the exercise of power quasi-in-rem has become almost

an anachronism. Circumstances too spare to affiliate the defendant

to the forum state sufficiently to support long-arm jurisdiction

over the defendant's person are also inadequate to support seizure

of the defendant's assets fortuitously found within the state.

Shaffer v. Heitner, 433 U.S. 186 (1977).

COMMITTEE NOTES ON RULES - 2000 AMENDMENT

Paragraph (2)(B) is added to Rule 4(i) to require service on the

United States when a United States officer or employee is sued in

an individual capacity for acts or omissions occurring in

connection with duties performed on behalf of the United States.

Decided cases provide uncertain guidance on the question whether

the United States must be served in such actions. See Vaccaro v.

Dobre, 81 F.3d 854, 856-857 (9th Cir. 1996); Armstrong v. Sears, 33

F.3d 182, 185-187 (2d Cir. 1994); Ecclesiastical Order of the Ism

of Am v. Chasin, 845 F.2d 113, 116 (6th Cir. 1988); Light v. Wolf,

816 F.2d 746 (D.C. Cir. 1987); see also Simpkins v. District of

Columbia, 108 F.3d 366, 368-369 (D.C. Cir. 1997). Service on the

United States will help to protect the interest of the individual

defendant in securing representation by the United States, and will

expedite the process of determining whether the United States will

provide representation. It has been understood that the individual

defendant must be served as an individual defendant, a requirement

that is made explicit. Invocation of the individual service

provisions of subdivisions (e), (f), and (g) invokes also the

waiver-of-service provisions of subdivision (d).

Paragraph 2(B) reaches service when an officer or employee of the

United States is sued in an individual capacity "for acts or

omissions occurring in connection with the performance of duties on

behalf of the United States." This phrase has been chosen as a

functional phrase that can be applied without the occasionally

distracting associations of such phrases as "scope of employment,"

"color of office," or "arising out of the employment." Many actions

are brought against individual federal officers or employees of the

United States for acts or omissions that have no connection

whatever to their governmental roles. There is no reason to require

service on the United States in these actions. The connection to

federal employment that requires service on the United States must

be determined as a practical matter, considering whether the

individual defendant has reasonable grounds to look to the United

States for assistance and whether the United States has reasonable

grounds for demanding formal notice of the action.

An action against a former officer or employee of the United

States is covered by paragraph (2)(B) in the same way as an action

against a present officer or employee. Termination of the

relationship between the individual defendant and the United States

does not reduce the need to serve the United States.

Paragraph (3) is amended to ensure that failure to serve the

United States in an action governed by paragraph 2(B) does not

defeat an action. This protection is adopted because there will be

cases in which the plaintiff reasonably fails to appreciate the

need to serve the United States. There is no requirement, however,

that the plaintiff show that the failure to serve the United States

was reasonable. A reasonable time to effect service on the United

States must be allowed after the failure is pointed out. An

additional change ensures that if the United States or United

States attorney is served in an action governed by paragraph 2(A),

additional time is to be allowed even though no officer, employee,

agency, or corporation of the United States was served.

GAP Report. The most important changes were made to ensure that

no one would read the seemingly independent provisions of

paragraphs 2(A) and 2(B) to mean that service must be made twice

both on the United States and on the United States employee when

the employee is sued in both official and individual capacities.

The word "only" was added in subparagraph (A) and the new phrase

"whether or not the officer or employee is sued also in an

individual capacity" was inserted in subparagraph (B).

Minor changes were made to include "Employees" in the catchline

for subdivision (i), and to add "or employee" in paragraph 2(A).

Although it may seem awkward to think of suit against an employee

in an official capacity, there is no clear definition that

separates "officers" from "employees" for this purpose. The

published proposal to amend Rule 12(a)(3) referred to actions

against an employee sued in an official capacity, and it seemed

better to make the rules parallel by adding "employee" to Rule

4(i)(2)(A) than by deleting it from Rule 12(a)(3)(A).

AMENDMENT BY PUBLIC LAW

1983 - Subd. (a). Pub. L. 97-462, Sec. 2(1), substituted "deliver

the summons to the plaintiff or the plaintiff's attorney, who shall

be responsible for prompt service of the summons and a copy of the

complaint" for "deliver it for service to the marshal or to any

other person authorized by Rule 4(c) to serve it".

Subd. (c). Pub. L. 97-462, Sec. 2(2), substituted provision with

subd. heading "Service" for provision with subd. heading "By Whom

Served" which read: "Service of process shall be made by a United

States marshal, by his deputy, or by some person specially

appointed by the court for that purpose, except that a subpoena may

be served as provided in Rule 45. Special appointments to serve

process shall be made freely. Service of process may also be made

by a person authorized to serve process in an action brought in the

courts of general jurisdiction of the state in which the district

court is held or in which service is made."

Subd. (d). Pub. L. 97-462, Sec. 2(3), (4), substituted "Summons

and Complaint: Person to be Served" for "Summons: Personal Service"

in subd. heading.

Subd. (d)(5). Pub. L. 97-462, Sec. 2(4), substituted "sending a

copy of the summons and of the complaint by registered or certified

mail" for "delivering a copy of the summons and of the complaint".

Subd. (d)(7). Pub. L. 97-462, Sec. 2(3)(B), struck out par. (7)

which read: "Upon a defendant of any class referred to in paragraph

(1) or (3) of this subdivision of this rule, it is also sufficient

if the summons and complaint are served in the manner prescribed by

any statute of the United States or in the manner prescribed by the

law of the state in which the district court is held for the

service of summons or other like process upon any such defendant in

an action brought in the courts of general jurisdiction of that

state.". See subd. (c)(2)(C) of this rule.

Subd. (e). Pub. L. 97-462, Sec. 2(5), substituted "Summons" for

"Same" as subd. heading.

Subd. (g). Pub. L. 97-462, Sec. 2(6), substituted in second

sentence "deputy United States marshal" and "such person" for "his

deputy" and "he" and inserted third sentence "If service is made

under subdivision (c)(2)(C)(ii) of this rule, return shall be made

by the sender's filing with the court the acknowledgment received

pursuant to such subdivision.".

Subd. (j). Pub. L. 97-462, Sec. 2(7), added subd. (j).

EFFECTIVE DATE OF 1983 AMENDMENT

Amendment by Pub. L. 97-462 effective 45 days after Jan. 12,

1983, see section 4 of Pub. L. 97-462, set out as a note under

section 2071 of this title.

-End-

-CITE-

28 USC APPENDIX Rule 4.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

Rule 4.1. Service of Other Process

-STATUTE-

(a) Generally. Process other than a summons as provided in Rule 4

or subpoena as provided in Rule 45 shall be served by a United

States marshal, a deputy United States marshal, or a person

specially appointed for that purpose, who shall make proof of

service as provided in Rule 4(l). The process may be served

anywhere within the territorial limits of the state in which the

district court is located, and, when authorized by a statute of the

United States, beyond the territorial limits of that state.

(b) Enforcement of Orders: Commitment for Civil Contempt. An

order of civil commitment of a person held to be in contempt of a

decree or injunction issued to enforce the laws of the United

States may be served and enforced in any district. Other orders in

civil contempt proceedings shall be served in the state in which

the court issuing the order to be enforced is located or elsewhere

within the United States if not more than 100 miles from the place

at which the order to be enforced was issued.

-SOURCE-

(As added Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1993

This is a new rule. Its purpose is to separate those few

provisions of the former Rule 4 bearing on matters other than

service of a summons to allow greater textual clarity in Rule 4.

Subdivision (a) contains no new language.

Subdivision (b) replaces the final clause of the penultimate

sentence of the former subdivision 4(f), a clause added to the rule

in 1963. The new rule provides for nationwide service of orders of

civil commitment enforcing decrees of injunctions issued to compel

compliance with federal law. The rule makes no change in the

practice with respect to the enforcement of injunctions or decrees

not involving the enforcement of federally-created rights.

Service of process is not required to notify a party of a decree

or injunction, or of an order that the party show cause why that

party should not be held in contempt of such an order. With respect

to a party who has once been served with a summons, the service of

the decree or injunction itself or of an order to show cause can be

made pursuant to Rule 5. Thus, for example, an injunction may be

served on a party through that person's attorney. Chagas v. United

States, 369 F.2d 643 (5th Cir. 1966). The same is true for service

of an order to show cause. Waffenschmidt v. Mackay, 763 F.2d 711

(5th Cir. 1985).

The new rule does not affect the reach of the court to impose

criminal contempt sanctions. Nationwide enforcement of federal

decrees and injunctions is already available with respect to

criminal contempt: a federal court may effect the arrest of a

criminal contemnor anywhere in the United States, 28 U.S.C. Sec.

3041, and a contemnor when arrested may be subject to removal to

the district in which punishment may be imposed. Fed. R. Crim. P.

40. Thus, the present law permits criminal contempt enforcement

against a contemnor wherever that person may be found.

The effect of the revision is to provide a choice of civil or

criminal contempt sanctions in those situations to which it

applies. Contempt proceedings, whether civil or criminal, must be

brought in the court that was allegedly defied by a contumacious

act. Ex parte Bradley, 74 U.S. 366 (1869). This is so even if the

offensive conduct or inaction occurred outside the district of the

court in which the enforcement proceeding must be conducted. E.g.,

McCourtney v. United States, 291 Fed. 497 (8th Cir.), cert. denied,

263 U.S. 714 (1923). For this purpose, the rule as before does not

distinguish between parties and other persons subject to contempt

sanctions by reason of their relation or connection to parties.

-End-

-CITE-

28 USC APPENDIX Rule 5 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

Rule 5. Serving and Filing Pleadings and Other Papers

-STATUTE-

(a) Service: When Required. Except as otherwise provided in these

rules, every order required by its terms to be served, every

pleading subsequent to the original complaint unless the court

otherwise orders because of numerous defendants, every paper

relating to discovery required to be served upon a party unless the

court otherwise orders, every written motion other than one which

may be heard ex parte, and every written notice, appearance,

demand, offer of judgment, designation of record on appeal, and

similar paper shall be served upon each of the parties. No service

need be made on parties in default for failure to appear except

that pleadings asserting new or additional claims for relief

against them shall be served upon them in the manner provided for

service of summons in Rule 4.

In an action begun by seizure of property, in which no person

need be or is named as defendant, any service required to be made

prior to the filing of an answer, claim, or appearance shall be

made upon the person having custody or possession of the property

at the time of its seizure.

(b) Making Service.

(1) Service under Rules 5(a) and 77(d) on a party represented

by an attorney is made on the attorney unless the court orders

service on the party.

(2) Service under Rule 5(a) is made by:

(A) Delivering a copy to the person served by:

(i) handing it to the person;

(ii) leaving it at the person's office with a clerk or

other person in charge, or if no one is in charge leaving it

in a conspicuous place in the office; or

(iii) if the person has no office or the office is closed,

leaving it at the person's dwelling house or usual place of

abode with someone of suitable age and discretion residing

there.

(B) Mailing a copy to the last known address of the person

served. Service by mail is complete on mailing.

(C) If the person served has no known address, leaving a copy

with the clerk of the court.

(D) Delivering a copy by any other means, including

electronic means, consented to in writing by the person served.

Service by electronic means is complete on transmission;

service by other consented means is complete when the person

making service delivers the copy to the agency designated to

make delivery. If authorized by local rule, a party may make

service under this subparagraph (D) through the court's

transmission facilities.

(3) Service by electronic means under Rule 5(b)(2)(D) is not

effective if the party making service learns that the attempted

service did not reach the person to be served.

(c) Same: Numerous Defendants. In any action in which there are

unusually large numbers of defendants, the court, upon motion or of

its own initiative, may order that service of the pleadings of the

defendants and replies thereto need not be made as between the

defendants and that any cross-claim, counterclaim, or matter

constituting an avoidance or affirmative defense contained therein

shall be deemed to be denied or avoided by all other parties and

that the filing of any such pleading and service thereof upon the

plaintiff constitutes due notice of it to the parties. A copy of

every such order shall be served upon the parties in such manner

and form as the court directs.

(d) Filing; Certificate of Service. All papers after the

complaint required to be served upon a party, together with a

certificate of service, must be filed with the court within a

reasonable time after service, but disclosures under Rule 26(a)(1)

or (2) and the following discovery requests and responses must not

be filed until they are used in the proceeding or the court orders

filing: (i) depositions, (ii) interrogatories, (iii) requests for

documents or to permit entry upon land, and (iv) requests for

admission.

(e) Filing with the Court Defined. The filing of papers with the

court as required by these rules shall be made by filing them with

the clerk of court, except that the judge may permit the papers to

be filed with the judge, in which event the judge shall note

thereon the filing date and forthwith transmit them to the office

of the clerk. A court may by local rule permit papers to be filed,

signed, or verified by electronic means that are consistent with

technical standards, if any, that the Judicial Conference of the

United States establishes. A paper filed by electronic means in

compliance with a local rule constitutes a written paper for the

purpose of applying these rules. The clerk shall not refuse to

accept for filing any paper presented for that purpose solely

because it is not presented in proper form as required by these

rules or any local rules or practices.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivisions (a) and (b). Compare 2 Minn.Stat. (Mason,

1927) Secs. 9240, 9241, 9242; N.Y.C.P.A. (1937) Secs. 163, 164, and

N.Y.R.C.P. (1937) Rules 20, 21; 2 Wash.Rev.Stat.Ann. (Remington,

1932) Secs. 244-249.

Note to Subdivision (d). Compare the present practice under

[former] Equity Rule 12 (Issue of Subpoena - Time for Answer).

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

The words "affected thereby," stricken out by the amendment,

introduced a problem of interpretation. See 1 Barron & Holtzoff,

Federal Practice & Procedure 760-61 (Wright ed. 1960). The

amendment eliminates this difficulty and promotes full exchange of

information among the parties by requiring service of papers on all

the parties to the action, except as otherwise provided in the

rules. See also subdivision (c) of Rule 5. So, for example, a

third-party defendant is required to serve his answer to the

third-party complaint not only upon the defendant but also upon the

plaintiff. See amended Form 22-A and the Advisory Committee's Note

thereto.

As to the method of serving papers upon a party whose address is

unknown, see Rule 5(b).

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

The amendment makes clear that all papers relating to discovery

which are required to be served on any party must be served on all

parties, unless the court orders otherwise. The present language

expressly includes notices and demands, but it is not explicit as

to answers or responses as provided in Rules 33, 34, and 36.

Discovery papers may be voluminous or the parties numerous, and the

court is empowered to vary the requirement if in a given case it

proves needlessly onerous.

In actions begun by seizure of property, service will at times

have to be made before the absent owner of the property has filed

an appearance. For example, a prompt deposition may be needed in a

maritime action in rem. See Rules 30(a) and 30(b)(2) and the

related notes. A provision is added authorizing service on the

person having custody or possession of the property at the time of

its seizure.

NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT

Subdivision (d). By the terms of this rule and Rule 30(f)(1)

discovery materials must be promptly filed, although it often

happens that no use is made of the materials after they are filed.

Because the copies required for filing are an added expense and the

large volume of discovery filings presents serious problems of

storage in some districts, the Committee in 1978 first proposed

that discovery materials not be filed unless on order of the court

or for use in the proceedings. But such materials are sometimes of

interest to those who may have no access to them except by a

requirement of filing, such as members of a class, litigants

similarly situated, or the public generally. Accordingly, this

amendment and a change in Rule 30(f)(1) continue the requirement of

filing but make it subject to an order of the court that discovery

materials not be filed unless filing is requested by the court or

is effected by parties who wish to use the materials in the

proceeding.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

Subdivision (d). This subdivision is amended to require that the

person making service under the rule certify that service has been

effected. Such a requirement has generally been imposed by local

rule.

Having such information on file may be useful for many purposes,

including proof of service if an issue arises concerning the

effectiveness of the service. The certificate will generally

specify the date as well as the manner of service, but parties

employing private delivery services may sometimes be unable to

specify the date of delivery. In the latter circumstance, a

specification of the date of transmission of the paper to the

delivery service may be sufficient for the purposes of this rule.

Subdivision (e). The words "pleading and other" are stricken as

unnecessary. Pleadings are papers within the meaning of the rule.

The revision also accommodates the development of the use of

facsimile transmission for filing.

Several local district rules have directed the office of the

clerk to refuse to accept for filing papers not conforming to

certain requirements of form imposed by local rules or practice.

This is not a suitable role for the office of the clerk, and the

practice exposes litigants to the hazards of time bars; for these

reasons, such rules are proscribed by this revision. The

enforcement of these rules and of the local rules is a role for a

judicial officer. A clerk may of course advise a party or counsel

that a particular instrument is not in proper form, and may be

directed to so inform the court.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

This is a technical amendment, using the broader language of Rule

25 of the Federal Rules of Appellate Procedure. The district court

- and the bankruptcy court by virtue of a cross-reference in

Bankruptcy Rule 7005 - can, by local rule, permit filing not only

by facsimile transmissions but also by other electronic means,

subject to standards approved by the Judicial Conference.

NOTES OF ADVISORY COMMITTEE ON RULES - 1996 AMENDMENT

The present Rule 5(e) has authorized filing by facsimile or other

electronic means on two conditions. The filing must be authorized

by local rule. Use of this means of filing must be authorized by

the Judicial Conference of the United States and must be consistent

with standards established by the Judicial Conference. Attempts to

develop Judicial Conference standards have demonstrated the value

of several adjustments in the rule.

The most significant change discards the requirement that the

Judicial Conference authorize local electronic filing rules. As

before, each district may decide for itself whether it has the

equipment and personnel required to establish electronic filing,

but a district that wishes to establish electronic filing need no

longer await Judicial Conference action.

The role of the Judicial Conference standards is clarified by

specifying that the standards are to govern technical matters.

Technical standards can provide nationwide uniformity, enabling

ready use of electronic filing without pausing to adjust for the

otherwise inevitable variations among local rules. Judicial

Conference adoption of technical standards should prove superior to

specification in these rules. Electronic technology has advanced

with great speed. The process of adopting Judicial Conference

standards should prove speedier and more flexible in determining

the time for the first uniform standards, in adjusting standards at

appropriate intervals, and in sparing the Supreme Court and

Congress the need to consider technological details. Until Judicial

Conference standards are adopted, however, uniformity will occur

only to the extent that local rules deliberately seek to copy other

local rules.

It is anticipated that Judicial Conference standards will govern

such technical specifications as data formatting, speed of

transmission, means to transmit copies of supporting documents, and

security of communication. Perhaps more important, standards must

be established to assure proper maintenance and integrity of the

record and to provide appropriate access and retrieval mechanisms.

Local rules must address these issues until Judicial Conference

standards are adopted.

The amended rule also makes clear the equality of filing by

electronic means with written filings. An electronic filing that

complies with the local rule satisfies all requirements for filing

on paper, signature, or verification. An electronic filing that

otherwise satisfies the requirements of 28 U.S.C. Sec. 1746 need

not be separately made in writing. Public access to electronic

filings is governed by the same rules as govern written filings.

The separate reference to filing by facsimile transmission is

deleted. Facsimile transmission continues to be included as an

electronic means.

COMMITTEE NOTES ON RULES - 2000 AMENDMENT

Subdivision (d). Rule 5(d) is amended to provide that disclosures

under Rule 26(a)(1) and (2), and discovery requests and responses

under Rules 30, 31, 33, 34, and 36 must not be filed until they are

used in the action. "Discovery requests" includes deposition

notices and "discovery responses" includes objections. The rule

supersedes and invalidates local rules that forbid, permit, or

require filing of these materials before they are used in the

action. The former Rule 26(a)(4) requirement that disclosures under

Rule 26(a)(1) and (2) be filed has been removed. Disclosures under

Rule 26(a)(3), however, must be promptly filed as provided in Rule

26(a)(3). Filings in connection with Rule 35 examinations, which

involve a motion proceeding when the parties do not agree, are

unaffected by these amendments.

Recognizing the costs imposed on parties and courts by required

filing of discovery materials that are never used in an action,

Rule 5(d) was amended in 1980 to authorize court orders that excuse

filing. Since then, many districts have adopted local rules that

excuse or forbid filing. In 1989 the Judicial Conference Local

Rules Project concluded that these local rules were inconsistent

with Rule 5(d), but urged the Advisory Committee to consider

amending the rule. Local Rules Project at 92 (1989). The Judicial

Conference of the Ninth Circuit gave the Committee similar advice

in 1997. The reality of nonfiling reflected in these local rules

has even been assumed in drafting the national rules. In 1993, Rule

30(f)(1) was amended to direct that the officer presiding at a

deposition file it with the court or send it to the attorney who

arranged for the transcript or recording. The Committee Note

explained that this alternative to filing was designed for "courts

which direct that depositions not be automatically filed." Rule

30(f)(1) has been amended to conform to this change in Rule 5(d).

Although this amendment is based on widespread experience with

local rules, and confirms the results directed by these local

rules, it is designed to supersede and invalidate local rules.

There is no apparent reason to have different filing rules in

different districts. Even if districts vary in present capacities

to store filed materials that are not used in an action, there is

little reason to continue expending court resources for this

purpose. These costs and burdens would likely change as parties

make increased use of audio- and videotaped depositions. Equipment

to facilitate review and reproduction of such discovery materials

may prove costly to acquire, maintain, and operate.

The amended rule provides that discovery materials and

disclosures under Rule 26(a)(1) and (a)(2) must not be filed until

they are "used in the proceeding." This phrase is meant to refer to

proceedings in court. This filing requirement is not triggered by

"use" of discovery materials in other discovery activities, such as

depositions. In connection with proceedings in court, however, the

rule is to be interpreted broadly; any use of discovery materials

in court in connection with a motion, a pretrial conference under

Rule 16, or otherwise, should be interpreted as use in the

proceeding.

Once discovery or disclosure materials are used in the

proceeding, the filing requirements of Rule 5(d) should apply to

them. But because the filing requirement applies only with regard

to materials that are used, only those parts of voluminous

materials that are actually used need be filed. Any party would be

free to file other pertinent portions of materials that are so

used. See Fed. R. Evid. 106; cf. Rule 32(a)(4). If the parties are

unduly sparing in their submissions, the court may order further

filings. By local rule, a court could provide appropriate direction

regarding the filing of discovery materials, such as depositions,

that are used in proceedings.

"Shall" is replaced by "must" under the program to conform

amended rules to current style conventions when there is no

ambiguity.

GAP Report. The Advisory Committee recommends no changes to

either the amendments to Rule 5(d) or the Committee Note as

published.

COMMITTEE NOTES ON RULES - 2001 AMENDMENT

Rule 5(b) is restyled.

Rule 5(b)(1) makes it clear that the provision for service on a

party's attorney applies only to service made under Rules 5(a) and

77(d). Service under Rules 4, 4.1, 45(b), and 71A(d)(3) - as well

as rules that invoke those rules - must be made as provided in

those rules.

Subparagraphs (A), (B), and (C) of Rule 5(b)(2) carry forward the

method-of-service provisions of former Rule 5(b).

Subparagraph (D) of Rule 5(b)(2) is new. It authorizes service by

electronic means or any other means, but only if consent is

obtained from the person served. The consent must be express, and

cannot be implied from conduct. Early experience with electronic

filing as authorized by Rule 5(d) is positive, supporting service

by electronic means as well. Consent is required, however, because

it is not yet possible to assume universal entry into the world of

electronic communication. Subparagraph (D) also authorizes service

by nonelectronic means. The Rule 5(b)(2)(B) provision making mail

service complete on mailing is extended in subparagraph (D) to make

service by electronic means complete on transmission; transmission

is effected when the sender does the last act that must be

performed by the sender. Service by other agencies is complete on

delivery to the designated agency.

Finally, subparagraph (D) authorizes adoption of local rules

providing for service through the court. Electronic case filing

systems will come to include the capacity to make service by using

the court's facilities to transmit all documents filed in the case.

It may prove most efficient to establish an environment in which a

party can file with the court, making use of the court's

transmission facilities to serve the filed paper on all other

parties. Transmission might be by such means as direct transmission

of the paper, or by transmission of a notice of filing that

includes an electronic link for direct access to the paper. Because

service is under subparagraph (D), consent must be obtained from

the persons served.

Consent to service under Rule 5(b)(2)(D) must be in writing,

which can be provided by electronic means. Parties are encouraged

to specify the scope and duration of the consent. The specification

should include at least the persons to whom service should be made,

the appropriate address or location for such service - such as the

e-mail address or facsimile machine number, and the format to be

used for attachments. A district court may establish a registry or

other facility that allows advance consent to service by specified

means for future actions.

Rule 6(e) is amended to allow additional time to respond when

service is made under Rule 5(b)(2)(D). The additional time does not

relieve a party who consents to service under Rule 5(b)(2)(D) of

the responsibilities to monitor the facility designated for

receiving service and to provide prompt notice of any address

change.

Paragraph (3) addresses a question that may arise from a literal

reading of the provision that service by electronic means is

complete on transmission. Electronic communication is rapidly

improving, but lawyers report continuing failures of transmission,

particularly with respect to attachments. Ordinarily the risk of

non-receipt falls on the person being served, who has consented to

this form of service. But the risk should not extend to situations

in which the person attempting service learns that the attempted

service in fact did not reach the person to be served. Given actual

knowledge that the attempt failed, service is not effected. The

person attempting service must either try again or show

circumstances that justify dispensing with service.

Paragraph (3) does not address the similar questions that may

arise when a person attempting service learns that service by means

other than electronic means in fact did not reach the person to be

served. Case law provides few illustrations of circumstances in

which a person attempting service actually knows that the attempt

failed but seeks to act as if service had been made. This negative

history suggests there is no need to address these problems in Rule

5(b)(3). This silence does not imply any view on these issues, nor

on the circumstances that justify various forms of judicial action

even though service has not been made.

Changes Made After Publication and Comments Rule 5(b)(2)(D) was

changed to require that consent be "in writing."

Rule 5(b)(3) is new. The published proposal did not address the

question of failed service in the text of the rule. Instead, the

Committee Note included this statement: "As with other modes of

service, however, actual notice that the transmission was not

received defeats the presumption of receipt that arises from the

provision that service is complete on transmission. The sender must

take additional steps to effect service. Service by other agencies

is complete on delivery to the designated agency." The addition of

paragraph (3) was prompted by consideration of the draft Appellate

Rule 25(c) that was prepared for the meeting of the Appellate Rules

Advisory Committee. This draft provided: "Service by electronic

means is complete on transmission, unless the party making service

is notified that the paper was not received." Although Appellate

Rule 25(c) is being prepared for publication and comment, while

Civil Rule 5(b) has been published and otherwise is ready to

recommend for adoption, it seemed desirable to achieve some

parallel between the two rules.

The draft Rule 5(b)(3) submitted for consideration by the

Advisory Committee covered all means of service except for leaving

a copy with the clerk of the court when the person to be served has

no known address. It was not limited to electronic service for fear

that a provision limited to electronic service might generate

unintended negative implications as to service by other means,

particularly mail. This concern was strengthened by a small number

of opinions that say that service by mail is effective, because

complete on mailing, even when the person making service has prompt

actual notice that the mail was not delivered. The Advisory

Committee voted to limit Rule 5(b)(3) to service by electronic

means because this means of service is relatively new, and seems

likely to miscarry more frequently than service by post. It was

suggested during the Advisory Committee meeting that the question

of negative implication could be addressed in the Committee Note.

There was little discussion of this possibility. The Committee Note

submitted above includes a "no negative implications" paragraph

prepared by the Reporter for consideration by the Standing

Committee.

The Advisory Committee did not consider at all a question that

was framed during the later meeting of the Appellate Rules Advisory

Committee. As approved by the Advisory Committee, Rule 5(b)(3)

defeats service by electronic means "if the party making service

learns that the attempted service did not reach the person to be

served." It says nothing about the time relevant to learning of the

failure. The omission may seem glaring. Curing the omission,

however, requires selection of a time. As revised, proposed

Appellate Rule 25(c) requires that the party making service learn

of the failure within three calendar days. The Appellate Rules

Advisory Committee will have the luxury of public comment and

another year to consider the desirability of this short period. If

Civil Rule 5(b) is to be recommended for adoption now, no such

luxury is available. This issue deserves careful consideration by

the Standing Committee.

Several changes are made in the Committee Note. (1) It requires

that consent "be express, and cannot be implied from conduct." This

addition reflects a more general concern stimulated by a reported

ruling that an e-mail address on a firm's letterhead implied

consent to email service. (2) The paragraph discussing service

through the court's facilities is expanded by describing

alternative methods, including an "electronic link." (3) There is a

new paragraph that states that the requirement of written consent

can be satisfied by electronic means, and that suggests matters

that should be addressed by the consent. (4) A paragraph is added

to note the additional response time provided by amended Rule 6(e).

(5) The final two paragraphs address newly added Rule 5(b)(3). The

first explains the rule that electronic service is not effective if

the person making service learns that it did not reach the person

to be served. The second paragraph seeks to defeat any negative

implications that might arise from limiting Rule 5(b)(3) to

electronic service, not mail, not other means consented to such as

commercial express service, and not service on another person on

behalf of the person to be served.

RULE 6(E)

The Advisory Committee recommended that no change be made in

Civil Rule 6(e) to reflect the provisions of Civil Rule 5(b)(2)(D)

that, with the consent of the person to be served, would allow

service by electronic or other means. Absent change, service by

these means would not affect the time for acting in response to the

paper served. Comment was requested, however, on the alternative

that would allow an additional 3 days to respond. The alternative

Rule 6(e) amendments are cast in a form that permits ready

incorporation in the Bankruptcy Rules. Several of the comments

suggest that the added three days should be provided. Electronic

transmission is not always instantaneous, and may fail for any of a

number of reasons. It may take three days to arrange for

transmission in readable form. Providing added time to respond will

not discourage people from asking for consent to electronic

transmission, and may encourage people to give consent. The more

who consent, the quicker will come the improvements that will make

electronic service ever more attractive. Consistency with the

Bankruptcy Rules will be a good thing, and the Bankruptcy Rules

Advisory Committee believes the additional three days should be

allowed.

-End-

-CITE-

28 USC APPENDIX Rule 6 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

Rule 6. Time

-STATUTE-

(a) Computation. In computing any period of time prescribed or

allowed by these rules, by the local rules of any district court,

by order of court, or by any applicable statute, the day of the

act, event, or default from which the designated period of time

begins to run shall not be included. The last day of the period so

computed shall be included, unless it is a Saturday, a Sunday, or a

legal holiday, or, when the act to be done is the filing of a paper

in court, a day on which weather or other conditions have made the

office of the clerk of the district court inaccessible, in which

event the period runs until the end of the next day which is not

one of the aforementioned days. When the period of time prescribed

or allowed is less than 11 days, intermediate Saturdays, Sundays,

and legal holidays shall be excluded in the computation. As used in

this rule and in Rule 77(c), "legal holiday" includes New Year's

Day, Birthday of Martin Luther King, Jr., Washington's Birthday,

Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans

Day, Thanksgiving Day, Christmas Day, and any other day appointed

as a holiday by the President or the Congress of the United States,

or by the state in which the district court is held.

(b) Enlargement. When by these rules or by a notice given

thereunder or by order of court an act is required or allowed to be

done at or within a specified time, the court for cause shown may

at any time in its discretion (1) with or without motion or notice

order the period enlarged if request therefor is made before the

expiration of the period originally prescribed or as extended by a

previous order, or (2) upon motion made after the expiration of the

specified period permit the act to be done where the failure to act

was the result of excusable neglect; but it may not extend the time

for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b),

(d) and (e), and 60(b), except to the extent and under the

conditions stated in them.

[(c) Unaffected by Expiration of Term.] (Rescinded Feb. 28, 1966,

eff. July 1, 1966)

(d) For Motions - Affidavits. A written motion, other than one

which may be heard ex parte, and notice of the hearing thereof

shall be served not later than 5 days before the time specified for

the hearing, unless a different period is fixed by these rules or

by order of the court. Such an order may for cause shown be made on

ex parte application. When a motion is supported by affidavit, the

affidavit shall be served with the motion; and, except as otherwise

provided in Rule 59(c), opposing affidavits may be served not later

than 1 day before the hearing, unless the court permits them to be

served at some other time.

(e) Additional Time After Service Under Rule 5(b)(2)(B), (C), or

(D). Whenever a party has the right or is required to do some act

or take some proceedings within a prescribed period after the

service of a notice or other paper upon the party and the notice or

paper is served upon the party under Rule 5(b)(2)(B), (C), or (D),

3 days shall be added to the prescribed period.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivisions (a) and (b). These are amplifications along

lines common in state practices, of [former] Equity Rule 80

(Computation of Time - Sundays and Holidays) and of the provisions

for enlargement of time found in [former] Equity Rules 8

(Enforcement of Final Decrees) and 16 (Defendant to Answer -

Default - Decree Pro Confesso). See also Rule XIII, Rules and Forms

in Criminal Cases, 292 U.S. 661, 666 (1934). Compare Ala.Code Ann.

(Michie, 1928) Sec. 13 and former Law Rule 8 of the Rules of the

Supreme Court of the District of Columbia (1924), superseded in

1929 by Law Rule 8, Rules of the District Court of the United

States for the District of Columbia (1937).

Note to Subdivision (c). This eliminates the difficulties caused

by the expiration of terms of court. Such statutes as U.S.C. Title

28, [former] Sec. 12 (Trials not discontinued by new term) are not

affected. Compare Rules of the United States District Court of

Minnesota, Rule 25 (Minn.Stat. (Mason, Supp. 1936), p. 1089).

Note to Subdivision (d). Compare 2 Minn.Stat. (Mason, 1927) Sec.

9246; N.Y.R.C.P. (1937) Rules 60 and 64.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Subdivision (b). The purpose of the amendment is to clarify the

finality of judgments. Prior to the advent of the Federal Rules of

Civil Procedure, the general rule that a court loses jurisdiction

to disturb its judgments, upon the expiration of the term at which

they were entered, had long been the classic device which (together

with the statutory limits on the time for appeal) gave finality to

judgments. See Note to Rule 73(a). Rule 6(c) abrogates that limit

on judicial power. That limit was open to many objections, one of

them being inequality of operation because, under it, the time for

vacating a judgment rendered early in a term was much longer than

for a judgment rendered near the end of the term.

The question to be met under Rule 6(b) is: how far should the

desire to allow correction of judgments be allowed to postpone

their finality? The rules contain a number of provisions permitting

the vacation or modification of judgments on various grounds. Each

of these rules contains express time limits on the motions for

granting of relief. Rule 6(b) is a rule of general application

giving wide discretion to the court to enlarge these time limits or

revive them after they have expired, the only exceptions stated in

the original rule being a prohibition against enlarging the time

specified in Rule 59(b) and (d) for making motions for or granting

new trials, and a prohibition against enlarging the time fixed by

law for taking an appeal. It should also be noted that Rule 6(b)

itself contains no limitation of time within which the court may

exercise its discretion, and since the expiration of the term does

not end its power, there is now no time limit on the exercise of

its discretion under Rule 6(b).

Decisions of lower federal courts suggest that some of the rules

containing time limits which may be set aside under Rule 6(b) are

Rules 25, 50(b), 52(b), 60(b), and 73(g).

In a number of cases the effect of Rule 6(b) on the time

limitations of these rules has been considered. Certainly the rule

is susceptible of the interpretation that the court is given the

power in its discretion to relieve a party from failure to act

within the times specified in any of these other rules, with only

the exceptions stated in Rule 6(b), and in some cases the rule has

been so construed.

With regard to Rule 25(a) for substitution, it was held in

Anderson v. Brady (E.D.Ky. 1941) 4 Fed.Rules Service 25a.1, Case 1,

and in Anderson v. Yungkau (C.C.A. 6th, 1946) 153 F.(2d) 685, cert.

granted (1946) 66 S.Ct. 1025, that under Rule 6(b) the court had no

authority to allow substitution of parties after the expiration of

the limit fixed in Rule 25(a).

As to Rules 50(b) for judgments notwithstanding the verdict and

52(b) for amendment of findings and vacation of judgment, it was

recognized in Leishman v. Associated Wholesale Electric Co. (1943)

318 U.S. 203, that Rule 6(b) allowed the district court to enlarge

the time to make a motion for amended findings and judgment beyond

the limit expressly fixed in Rule 52(b). See Coca-Cola v. Busch

(E.D.Pa. 1943) 7 Fed.Rules Service 59b.2, Case 4. Obviously, if the

time limit in Rule 52(b) could be set aside under Rule 6(b), the

time limit in Rule 50(b) for granting judgment notwithstanding the

verdict (and thus vacating the judgment entered "forthwith" on the

verdict) likewise could be set aside.

As to Rule 59 on motions for a new trial, it has been settled

that the time limits in Rule 59(b) and (d) for making motions for

or granting new trial could not be set aside under Rule 6(b),

because Rule 6(b) expressly refers to Rule 59, and forbids it. See

Safeway Stores, Inc. v. Coe (App.D.C. 1943) 136 F.(2d) 771; Jusino

v. Morales & Tio (C.C.A. 1st, 1944) 139 F.(2d) 946; Coca-Cola Co.

v. Busch (E.D.Pa. 1943) 7 Fed.Rules Service 59b.2, Case 4; Peterson

v. Chicago Great Western Ry. Co. (D.Neb. 1943) 7 Fed.Rules Service

59b.2, Case 1; Leishman v. Associated Wholesale Electric Co. (1943)

318 U.S. 203.

As to Rule 60(b) for relief from a judgment, it was held in

Schram v. O'Connor (E.D.Mich. 1941) 5 Fed.Rules Serv. 6b.31, Case

1, 2 F.R.D. 192, s. c. 5 Fed.Rules Serv. 6b.31, Case 2, F.R.D. 192,

that the six-months time limit in original Rule 60(b) for making a

motion for relief from a judgment for surprise, mistake, or

excusable neglect could be set aside under Rule 6(b). The contrary

result was reached in Wallace v. United States (C.C.A.2d, 1944) 142

F.(2d) 240, cert. den. (1944) 323 U.S. 712; Reed v. South Atlantic

Steamship Co. of Del. (D.Del. 1942) 6 Fed.Rules Serv. 60b.31, Case

1.

As to Rule 73(g), fixing the time for docketing an appeal, it was

held in Ainsworth v. Gill Glass & Fixture Co. (C.C.A.3d, 1939) 104

F.(2d) 83, that under Rule 6(b) the district court, upon motion

made after the expiration of the forty-day period, stated in Rule

73(g), but before the expiration of the ninety-day period therein

specified, could permit the docketing of the appeal on a showing of

excusable neglect. The contrary was held in Mutual Benefit Health &

Accident Ass'n v. Snyder (C.C.A. 6th, 1940) 109 F.(2d) 469 and in

Burke v. Canfield (App.D.C. 1940) 111 F.(2d) 526.

The amendment of Rule 6(b) now proposed is based on the view that

there should be a definite point where it can be said a judgment is

final; that the right method of dealing with the problem is to list

in Rule 6(b) the various other rules whose time limits may not be

set aside, and then, if the time limit in any of those other rules

is too short, to amend that other rule to give a longer time. The

further argument is that Rule 6(c) abolished the long standing

device to produce finality in judgments through expiration of the

term, and since that limitation on the jurisdiction of courts to

set aside their own judgments has been removed by Rule 6(c), some

other limitation must be substituted or judgments never can be said

to be final.

In this connection reference is made to the established rule that

if a motion for new trial is seasonably made, the mere making or

pendency of the motion destroys the finality of the judgment, and

even though the motion is ultimately denied, the full time for

appeal starts anew from the date of denial. Also, a motion to amend

the findings under Rule 52(b) has the same effect on the time for

appeal. Leishman v. Associated Wholesale Electric Co. (1943) 318

U.S. 203. By the same reasoning a motion for judgment under Rule

50(b), involving as it does the vacation of a judgment entered

"forthwith" on the verdict (Rule 58), operates to postpone, until

an order is made, the running of the time for appeal. The Committee

believes that the abolition by Rule 6(c) of the old rule that a

court's power over its judgments ends with the term, requires a

substitute limitation, and that unless Rule 6(b) is amended to

prevent enlargement of the times specified in Rules 50(b), 52(b)

and 60(b), and the limitation as to Rule 59(b) and (d) is retained,

no one can say when a judgment is final. This is also true with

regard to proposed Rule 59(e), which authorizes a motion to alter

or amend a judgment, hence that rule is also included in the

enumeration in amended Rule 6(b). In consideration of the

amendment, however, it should be noted that Rule 60(b) is also to

be amended so as to lengthen the six-months period originally

prescribed in that rule to one year.

As to Rule 25 on substitution, while finality is not involved,

the limit there fixed should be controlling. That rule, as amended,

gives the court power, upon showing of a reasonable excuse, to

permit substitution after the expiration of the two-year period.

As to Rule 73(g), it is believed that the conflict in decisions

should be resolved and not left to further litigation, and that the

rule should be listed as one whose limitation may not be set aside

under Rule 6(b).

As to Rule 59(c), fixing the time for serving affidavits on

motion for new trial, it is believed that the court should have

authority under Rule 6(b) to enlarge the time, because, once the

motion for new trial is made, the judgment no longer has finality,

and the extension of time for affidavits thus does not of itself

disturb finality.

Other changes proposed in Rule 6(b) are merely clarifying and

conforming. Thus "request" is substituted for "application" in

clause (1) because an application is defined as a motion under Rule

7(b). The phrase "extend the time" is substituted for "enlarge the

period" because the former is a more suitable expression and

relates more clearly to both clauses (1) and (2). The final phrase

in Rule 6(b), "or the period for taking an appeal as provided by

law", is deleted and a reference to Rule 73(a) inserted, since it

is proposed to state in that rule the time for appeal to a circuit

court of appeals, which is the only appeal governed by the Federal

Rules, and allows an extension of time. See Rule 72.

Subdivision (c). The purpose of this amendment is to prevent

reliance upon the continued existence of a term as a source of

power to disturb the finality of a judgment upon grounds other than

those stated in these rules. See Hill v. Hawes (1944) 320 U.S. 520;

Boaz v. Mutual Life Ins. Co. of New York (C.C.A. 8th, 1944) 146

F.(2d) 321; Bucy v. Nevada Construction Co. (C.C.A. 9th, 1942) 125

F.(2d) 213.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

Subdivision (a). This amendment is related to the amendment of

Rule 77(c) changing the regulation of the days on which the clerk's

office shall be open.

The wording of the first sentence of Rule 6(a) is clarified and

the subdivision is made expressly applicable to computing periods

of time set forth in local rules.

Saturday is to be treated in the same way as Sunday or a "legal

holiday" in that it is not to be included when it falls on the last

day of a computed period, nor counted as an intermediate day when

the period is less than 7 days. "Legal holiday" is defined for

purposes of this subdivision and amended Rule 77(c). Compare the

definition of "holiday" in 11 U.S.C. Sec. 1(18); also 5 U.S.C. Sec.

86a; Executive Order No. 10358, "Observance of Holidays," June 9,

1952, 17 Fed.Reg. 5269. In the light of these changes the last

sentence of the present subdivision, dealing with half holidays, is

eliminated.

With Saturdays and State holidays made "dies non" in certain

cases by the amended subdivision, computation of the usual 5-day

notice of motion or the 2-day notice to dissolve or modify a

temporary restraining order may work out so as to cause

embarrassing delay in urgent cases. The delay can be obviated by

applying to the court to shorten the time, see Rules 6(d) and

65(b).

Subdivision (b). The prohibition against extending the time for

taking action under Rule 25 (Substitution of parties) is

eliminated. The only limitation of time provided for in amended

Rule 25 is the 90-day period following a suggestion upon the record

of the death of a party within which to make a motion to substitute

the proper parties for the deceased party. See Rule 25(a)(1), as

amended, and the Advisory Committee's Note thereto. It is intended

that the court shall have discretion to enlarge that period.

NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT

The amendment eliminates the references to Rule 73, which is to

be abrogated.

P. L. 88-139, Sec. 1, 77 Stat. 248, approved on October 16, 1963,

amended 28 U.S.C. Sec. 138 to read as follows: "The district court

shall not hold formal terms." Thus Rule 6(c) is rendered

unnecessary, and it is rescinded.

NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT

The amendment adds Columbus Day to the list of legal holidays to

conform the subdivision to the Act of June 28, 1968, 82 Stat. 250,

which constituted Columbus Day a legal holiday effective after

January 1, 1971.

The Act, which amended Title 5, U.S.C., Sec. 6103(a), changes the

day on which certain holidays are to be observed. Washington's

Birthday, Memorial Day and Veterans Day are to be observed on the

third Monday in February, the last Monday in May and the fourth

Monday in October, respectively, rather than, as heretofore, on

February 22, May 30, and November 11, respectively. Columbus Day is

to be observed on the second Monday in October. New Year's Day,

Independence Day, Thanksgiving Day and Christmas continue to be

observed on the traditional days.

NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT

Subdivision (b). The amendment confers finality upon the

judgments of magistrates by foreclosing enlargement of the time for

appeal except as provided in new Rule 74(a) (20 day period for

demonstration of excusable neglect).

NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT

Rule 6(a) is amended to acknowledge that weather conditions or

other events may render the clerk's office inaccessible one or more

days. Parties who are obliged to file something with the court

during that period should not be penalized if they cannot do so.

The amendment conforms to changes made in Federal Rule of Criminal

Procedure 45(a), effective August 1, 1982.

The Rule also is amended to extend the exclusion of intermediate

Saturdays, Sundays, and legal holidays to the computation of time

periods less than 11 days. Under the current version of the Rule,

parties bringing motions under rules with 10-day periods could have

as few as 5 working days to prepare their motions. This hardship

would be especially acute in the case of Rules 50(b) and (c)(2),

52(b), and 59(b), (d), and (e), which may not be enlarged at the

discretion of the court. See Rule 6(b). If the exclusion of

Saturdays, Sundays, and legal holidays will operate to cause

excessive delay in urgent cases, the delay can be obviated by

applying to the court to shorten the time, See Rule 6(b).

The Birthday of Martin Luther King, Jr., which becomes a legal

holiday effective in 1986, has been added to the list of legal

holidays enumerated in the Rule.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

COMMITTEE NOTES ON RULES - 1999 AMENDMENT

The reference to Rule 74(a) is stricken from the catalogue of

time periods that cannot be extended by the district court. The

change reflects the 1997 abrogation of Rule 74(a).

COMMITTEE NOTES ON RULES - 2001 AMENDMENT

The additional three days provided by Rule 6(e) is extended to

the means of service authorized by the new paragraph (D) added to

Rule 5(b), including - with the consent of the person served -

service by electronic or other means. The three-day addition is

provided as well for service on a person with no known address by

leaving a copy with the clerk of the court.

Changes Made After Publication and Comments Proposed Rule 6(e) is

the same as the "alternative proposal" that was published in August

1999.

-End-

-CITE-

28 USC APPENDIX III. PLEADINGS AND MOTIONS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

III. PLEADINGS AND MOTIONS

-HEAD-

III. PLEADINGS AND MOTIONS

-End-

-CITE-

28 USC APPENDIX Rule 7 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 7. Pleadings Allowed; Form of Motions

-STATUTE-

(a) Pleadings. There shall be a complaint and an answer; a reply

to a counterclaim denominated as such; an answer to a cross-claim,

if the answer contains a cross-claim; a third-party complaint, if a

person who was not an original party is summoned under the

provisions of Rule 14; and a third-party answer, if a third-party

complaint is served. No other pleading shall be allowed, except

that the court may order a reply to an answer or a third-party

answer.

(b) Motions and Other Papers.

(1) An application to the court for an order shall be by motion

which, unless made during a hearing or trial, shall be made in

writing, shall state with particularity the grounds therefor, and

shall set forth the relief or order sought. The requirement of

writing is fulfilled if the motion is stated in a written notice

of the hearing of the motion.

(2) The rules applicable to captions and other matters of form

of pleadings apply to all motions and other papers provided for

by these rules.

(3) All motions shall be signed in accordance with Rule 11.

(c) Demurrers, Pleas, Etc., Abolished. Demurrers, pleas, and

exceptions for insufficiency of a pleading shall not be used.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.

July 1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

1. A provision designating pleadings and defining a motion is

common in the State practice acts. See Ill.Rev.Stat. (1937), ch.

110, Sec. 156 (Designation and order of pleadings); 2 Minn.Stat.

(Mason, 1927) Sec. 9246 (Definition of motion); and N.Y.C.P.A.

(1937) Sec. 113 (Definition of motion). Former Equity Rules 18

(Pleadings - Technical Forms Abrogated), 29 (Defenses - How

Presented), and 33 (Testing Sufficiency of Defense) abolished

technical forms of pleading, demurrers, and pleas, and exceptions

for insufficiency of an answer.

2. Note to Subdivision (a). This preserves the substance of

[former] Equity Rule 31 (Reply - When Required - When Cause at

Issue). Compare the English practice, English Rules Under the

Judicature Act (The Annual Practice, 1937) O. 23, r.r. 1, 2 (Reply

to counterclaim; amended, 1933, to be subject to the rules

applicable to defenses, O. 21). See O. 21, r.r. 1-14; O. 27, r. 13

(When pleadings deemed denied and put in issue). Under the codes

the pleadings are generally limited. A reply is sometimes required

to an affirmative defense in the answer. 1 Colo.Stat.Ann. (1935)

Sec. 66; Ore.Code Ann. (1930) Secs. 1-614, 1-616. In other

jurisdictions no reply is necessary to an affirmative defense in

the answer, but a reply may be ordered by the court. N.C.Code Ann.

(1935) Sec. 525; 1 S.D.Comp.Laws (1929) Sec. 2357. A reply to a

counterclaim is usually required. Ark.Civ.Code (Crawford, 1934)

Secs. 123-125; Wis.Stat. (1935) Secs. 263.20, 263.21. U.S.C., Title

28, [former] Sec. 45 (District courts; practice and procedure in

certain cases) is modified insofar as it may dispense with a reply

to a counterclaim.

For amendment of pleadings, see Rule 15 dealing with amended and

supplemental pleadings.

3. All statutes which use the words "petition", "bill of

complaint", "plea", "demurrer", and other such terminology are

modified in form by this rule.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

This amendment [to subdivision (a)] eliminates any question as to

whether the compulsory reply, where a counterclaim is pleaded, is a

reply only to the counterclaim or is a general reply to the answer

containing the counterclaim. See Commentary, Scope of Reply Where

Defendant Has Pleaded Counterclaim (1939) 1 Fed.Rules Serv. 672;

Fort Chartres and Ivy Landing Drainage and Levee District No. Five

v. Thompson (E.D.Ill. 1945) 8 Fed.Rules Serv. 13.32, Case 1.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

Certain redundant words are eliminated and the subdivision is

modified to reflect the amendment of Rule 14(a) which in certain

cases eliminates the requirement of obtaining leave to bring in a

third-party defendant.

NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT

One of the reasons sanctions against improper motion practice

have been employed infrequently is the lack of clarity of Rule 7.

That rule has stated only generally that the pleading requirements

relating to captions, signing, and other matters of form also apply

to motions and other papers. The addition of Rule 7(b)(3) makes

explicit the applicability of the signing requirement and the

sanctions of Rule 11, which have been amplified.

-End-

-CITE-

28 USC APPENDIX Rule 7.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 7.1. Disclosure Statement

-STATUTE-

(a) Who Must File: Nongovernmental Corporate Party. A

nongovernmental corporate party to an action or proceeding in a

district court must file two copies of a statement that identifies

any parent corporation and any publicly held corporation that owns

10% or more of its stock or states that there is no such

corporation.

(b) Time for Filing; Supplemental Filing. A party must:

(1) file the Rule 7.1(a) statement with its first appearance,

pleading, petition, motion, response, or other request addressed

to the court, and

(2) promptly file a supplemental statement upon any change in

the information that the statement requires.

-SOURCE-

(As added Apr. 29, 2002, eff. Dec. 1, 2002.)

-MISC1-

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Rule 7.1 is drawn from Rule 26.1 of the Federal Rules of

Appellate Procedure, with changes to adapt to the circumstances of

district courts that dictate different provisions for the time of

filing, number of copies, and the like. The information required by

Rule 7.1(a) reflects the "financial interest" standard of Canon

3C(1)(c) of the Code of Conduct for United States Judges. This

information will support properly informed disqualification

decisions in situations that call for automatic disqualification

under Canon 3C(1)(c). It does not cover all of the circumstances

that may call for disqualification under the financial interest

standard, and does not deal at all with other circumstances that

may call for disqualification.

Although the disclosures required by Rule 7.1(a) may seem

limited, they are calculated to reach a majority of the

circumstances that are likely to call for disqualification on the

basis of financial information that a judge may not know or

recollect. Framing a rule that calls for more detailed disclosure

will be difficult. Unnecessary disclosure requirements place a

burden on the parties and on courts. Unnecessary disclosure of

volumes of information may create a risk that a judge will overlook

the one bit of information that might require disqualification, and

also may create a risk that unnecessary disqualifications will be

made rather than attempt to unravel a potentially difficult

question. It has not been feasible to dictate more detailed

disclosure requirements in Rule 7.1(a).

Rule 7.1 does not prohibit local rules that require disclosures

in addition to those required by Rule 7.1. Developing experience

with local disclosure practices and advances in electronic

technology may provide a foundation for adopting more detailed

disclosure requirements by future amendments of Rule 7.1.

Changes Made After Publication and Comments. The provisions that

would require disclosure of additional information that may be

required by the Judicial Conference have been deleted.

-End-

-CITE-

28 USC APPENDIX Rule 8 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 8. General Rules of Pleading

-STATUTE-

(a) Claims for Relief. A pleading which sets forth a claim for

relief, whether an original claim, counterclaim, cross-claim, or

third-party claim, shall contain (1) a short and plain statement of

the grounds upon which the court's jurisdiction depends, unless the

court already has jurisdiction and the claim needs no new grounds

of jurisdiction to support it, (2) a short and plain statement of

the claim showing that the pleader is entitled to relief, and (3) a

demand for judgment for the relief the pleader seeks. Relief in the

alternative or of several different types may be demanded.

(b) Defenses; Form of Denials. A party shall state in short and

plain terms the party's defenses to each claim asserted and shall

admit or deny the averments upon which the adverse party relies. If

a party is without knowledge or information sufficient to form a

belief as to the truth of an averment, the party shall so state and

this has the effect of a denial. Denials shall fairly meet the

substance of the averments denied. When a pleader intends in good

faith to deny only a part or a qualification of an averment, the

pleader shall specify so much of it as is true and material and

shall deny only the remainder. Unless the pleader intends in good

faith to controvert all the averments of the preceding pleading,

the pleader may make denials as specific denials of designated

averments or paragraphs or may generally deny all the averments

except such designated averments or paragraphs as the pleader

expressly admits; but, when the pleader does so intend to

controvert all its averments, including averments of the grounds

upon which the court's jurisdiction depends, the pleader may do so

by general denial subject to the obligations set forth in Rule 11.

(c) Affirmative Defenses. In pleading to a preceding pleading, a

party shall set forth affirmatively accord and satisfaction,

arbitration and award, assumption of risk, contributory negligence,

discharge in bankruptcy, duress, estoppel, failure of

consideration, fraud, illegality, injury by fellow servant, laches,

license, payment, release, res judicata, statute of frauds, statute

of limitations, waiver, and any other matter constituting an

avoidance or affirmative defense. When a party has mistakenly

designated a defense as a counterclaim or a counterclaim as a

defense, the court on terms, if justice so requires, shall treat

the pleading as if there had been a proper designation.

(d) Effect of Failure To Deny. Averments in a pleading to which a

responsive pleading is required, other than those as to the amount

of damage, are admitted when not denied in the responsive pleading.

Averments in a pleading to which no responsive pleading is required

or permitted shall be taken as denied or avoided.

(e) Pleading To Be Concise and Direct; Consistency.

(1) Each averment of a pleading shall be simple, concise, and

direct. No technical forms of pleading or motions are required.

(2) A party may set forth two or more statements of a claim or

defense alternately or hypothetically, either in one count or

defense or in separate counts or defenses. When two or more

statements are made in the alternative and one of them if made

independently would be sufficient, the pleading is not made

insufficient by the insufficiency of one or more of the

alternative statements. A party may also state as many separate

claims or defenses as the party has regardless of consistency and

whether based on legal, equitable, or maritime grounds. All

statements shall be made subject to the obligations set forth in

Rule 11.

(f) Construction of Pleadings. All pleadings shall be so

construed as to do substantial justice.

-SOURCE-

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.

Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). See [former] Equity Rules 25 (Bill of

Complaint - Contents), and 30 (Answer - Contents - Counterclaim).

Compare 2 Ind.Stat.Ann. (Burns, 1933) Secs. 2-1004, 2-1015; 2 Ohio

Gen.Code Ann. (Page, 1926) Secs. 11305, 11314; Utah Rev.Stat.Ann.

(1933), Secs. 104-7-2, 104-9-1.

See Rule 19(c) for the requirement of a statement in a claim for

relief of the names of persons who ought to be parties and the

reason for their omission.

See Rule 23(b) for particular requirements as to the complaint in

a secondary action by shareholders.

Note to Subdivision (b). 1. This rule supersedes the methods of

pleading prescribed in U.S.C., Title 19, Sec. 508 (Persons making

seizures pleading general issue and providing special matter);

U.S.C., Title 35, [former] Secs. 40d (Providing under general

issue, upon notice, that a statement in application for an extended

patent is not true), 69 [now 282] (Pleading and proof in actions

for infringement) and similar statutes.

2. This rule is, in part, [former] Equity Rule 30 (Answer -

Contents - Counterclaim), with the matter on denials largely from

the Connecticut practice. See Conn.Practice Book (1934) Secs. 107,

108, and 122; Conn.Gen.Stat. (1930) Secs. 5508-5514. Compare the

English practice, English Rules Under the Judicature Act (The

Annual Practice, 1937) O. 19, r.r. 17-20.

Note to Subdivision (c). This follows substantially English Rules

Under the Judicature Act (The Annual Practice, 1937) O. 19, r. 15

and N.Y.C.P.A. (1937) Sec. 242, with "surprise" omitted in this

rule.

Note to Subdivision (d). The first sentence is similar to

[former] Equity Rule 30 (Answer - Contents - Counterclaim). For the

second sentence see [former] Equity Rule 31 (Reply - When Required

- When Cause at Issue). This is similar to English Rules Under the

Judicature Act (The Annual Practice, 1937) O. 19, r.r. 13, 18; and

to the practice in the States.

Note to Subdivision (e). This rule is an elaboration upon

[former] Equity Rule 30 (Answer - Contents - Counterclaim), plus a

statement of the actual practice under some codes. Compare also

[former] Equity Rule 18 (Pleadings - Technical Forms Abrogated).

See Clark, Code Pleading (1928), pp. 171-4, 432-5; Hankin,

Alternative and Hypothetical Pleading (1924), 33 Yale L.J. 365.

Note to Subdivision (f). A provision of like import is of

frequent occurrence in the codes. Ill.Rev.Stat. (1937) ch. 110,

Sec. 157(3); 2 Minn.Stat. (Mason, 1927) Sec. 9266; N.Y.C.P.A.

(1937) Sec. 275; 2 N.D.Comp.Laws Ann. (1913) Sec. 7458.

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

The change here is consistent with the broad purposes of

unification.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 9 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 9. Pleading Special Matters

-STATUTE-

(a) Capacity. It is not necessary to aver the capacity of a party

to sue or be sued or the authority of a party to sue or be sued in

a representative capacity or the legal existence of an organized

association of persons that is made a party, except to the extent

required to show the jurisdiction of the court. When a party

desires to raise an issue as to the legal existence of any party or

the capacity of any party to sue or be sued or the authority of a

party to sue or be sued in a representative capacity, the party

desiring to raise the issue shall do so by specific negative

averment, which shall include such supporting particulars as are

peculiarly within the pleader's knowledge.

(b) Fraud, Mistake, Condition of the Mind. In all averments of

fraud or mistake, the circumstances constituting fraud or mistake

shall be stated with particularity. Malice, intent, knowledge, and

other condition of mind of a person may be averred generally.

(c) Conditions Precedent. In pleading the performance or

occurrence of conditions precedent, it is sufficient to aver

generally that all conditions precedent have been performed or have

occurred. A denial of performance or occurrence shall be made

specifically and with particularity.

(d) Official Document or Act. In pleading an official document or

official act it is sufficient to aver that the document was issued

or the act done in compliance with law.

(e) Judgment. In pleading a judgment or decision of a domestic or

foreign court, judicial or quasi-judicial tribunal, or of a board

or officer, it is sufficient to aver the judgment or decision

without setting forth matter showing jurisdiction to render it.

(f) Time and Place. For the purpose of testing the sufficiency of

a pleading, averments of time and place are material and shall be

considered like all other averments of material matter.

(g) Special Damage. When items of special damage are claimed,

they shall be specifically stated.

(h) Admiralty and Maritime Claims. A pleading or count setting

forth a claim for relief within the admiralty and maritime

jurisdiction that is also within the jurisdiction of the district

court on some other ground may contain a statement identifying the

claim as an admiralty or maritime claim for the purposes of Rules

14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty

and Maritime Claims. If the claim is cognizable only in admiralty,

it is an admiralty or maritime claim for those purposes whether so

identified or not. The amendment of a pleading to add or withdraw

an identifying statement is governed by the principles of Rule 15.

A case that includes an admiralty or maritime claim within this

subdivision is an admiralty case within 28 U.S.C. Sec. 1292(a)(3).

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). Compare [former] Equity Rule 25 (Bill of

Complaint - Contents) requiring disability to be stated; Utah

Rev.Stat.Ann. (1933) Sec. 104-13-15, enumerating a number of

situations where a general averment of capacity is sufficient. For

provisions governing averment of incorporation, see 2 Minn.Stat.

(Mason, 1927) Sec. 9271; N.Y.R.C.P. (1937) Rule 93; 2 N.D.Comp.Laws

Ann. (1913) Sec. 7981 et seq.

Note to Subdivision (b). See English Rules Under the Judicature

Act (The Annual Practice, 1937) O. 19, r. 22.

Note to Subdivision (c). The codes generally have this or a

similar provision. See English Rules Under the Judicature Act (The

Annual Practice, 1937) O. 19, r. 14; 2 Minn.Stat. (Mason, 1927)

Sec. 9273; N.Y.R.C.P. (1937) Rule 92; 2 N.D.Comp.Laws Ann. (1913)

Sec. 7461; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 288.

Note to Subdivision (e). The rule expands the usual code

provisions on pleading a judgment by including judgments or

decisions of administrative tribunals and foreign courts. Compare

Ark.Civ.Code (Crawford, 1934) Sec. 141; 2 Minn.Stat. (Mason, 1927)

Sec. 9269; N.Y.R.C.P. (1937) Rule 95; 2 Wash.Rev.Stat.Ann.

(Remington, 1932) Sec. 287.

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

Certain distinctive features of the admiralty practice must be

preserved for what are now suits in admiralty. This raises the

question: After unification, when a single form of action is

established, how will the counterpart of the present suit in

admiralty be identifiable? In part the question is easily answered.

Some claims for relief can only be suits in admiralty, either

because the admiralty jurisdiction is exclusive or because no

nonmaritime ground of federal jurisdiction exists. Many claims,

however, are cognizable by the district courts whether asserted in

admiralty or in a civil action, assuming the existence of a

nonmaritime ground of jurisdiction. Thus at present the pleader has

power to determine procedural consequences by the way in which he

exercises the classic privilege given by the saving-to-suitors

clause (28 U.S.C. Sec. 1333) or by equivalent statutory provisions.

For example, a longshoreman's claim for personal injuries suffered

by reason of the unseaworthiness of a vessel may be asserted in a

suit in admiralty or, if diversity of citizenship exists, in a

civil action. One of the important procedural consequences is that

in the civil action either party may demand a jury trial, while in

the suit in admiralty there is no right to jury trial except as

provided by statute.

It is no part of the purpose of unification to inject a right to

jury trial into those admiralty cases in which that right is not

provided by statute. Similarly as will be more specifically noted

below, there is no disposition to change the present law as to

interlocutory appeals in admiralty, or as to the venue of suits in

admiralty; and, of course, there is no disposition to inject into

the civil practice as it now is the distinctively maritime remedies

(maritime attachment and garnishment, actions in rem, possessory,

petitory and partition actions and limitation of liability). The

unified rules must therefore provide some device for preserving the

present power of the pleader to determine whether these

historically maritime procedures shall be applicable to his claim

or not; the pleader must be afforded some means of designating his

claim as the counterpart of the present suit in admiralty, where

its character as such is not clear.

The problem is different from the similar one concerning the

identification of claims that were formerly suits in equity. While

that problem is not free from complexities, it is broadly true that

the modern counterpart of the suit in equity is distinguishable

from the former action at law by the character of the relief

sought. This mode of identification is possible in only a limited

category of admiralty cases. In large numbers of cases the relief

sought in admiralty is simple money damages, indistinguishable from

the remedy afforded by the common law. This is true, for example,

in the case of the longshoreman's action for personal injuries

stated above. After unification has abolished the distinction

between civil actions and suits in admiralty, the complaint in such

an action would be almost completely ambiguous as to the pleader's

intentions regarding the procedure invoked. The allegation of

diversity of citizenship might be regarded as a clue indicating an

intention to proceed as at present under the saving-to-suitors

clause; but this, too, would be ambiguous if there were also

reference to the admiralty jurisdiction, and the pleader ought not

be required to forego mention of all available jurisdictional

grounds.

Other methods of solving the problem were carefully explored, but

the Advisory Committee concluded that the preferable solution is to

allow the pleader who now has power to determine procedural

consequences by filing a suit in admiralty to exercise that power

under unification, for the limited instances in which procedural

differences will remain, by a simple statement in his pleading to

the effect that the claim is an admiralty or maritime claim.

The choice made by the pleader in identifying or in failing to

identify his claim as an admiralty or maritime claim is not an

irrevocable election. The rule provides that the amendment of a

pleading to add or withdraw an identifying statement is subject to

the principles of Rule 15.

NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT

The amendment eliminates the reference to Rule 73 which is to be

abrogated and transfers to Rule 9(h) the substance of Subsection

(h) of Rule 73 which preserved the right to an interlocutory appeal

in admiralty cases which is provided by 28 U.S.C. Sec. 1292(a)(3).

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

The reference to Rule 26(a) is deleted, in light of the transfer

of that subdivision to Rule 30(a) and the elimination of the de

bene esse procedure therefrom. See the Advisory Committee's note to

Rule 30(a).

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT

Section 1292(a)(3) of the Judicial Code provides for appeal from

"[i]nterlocutory decrees of * * * district courts * * * determining

the rights and liabilities of the parties to admiralty cases in

which appeals from final decrees are allowed."

Rule 9(h) was added in 1966 with the unification of civil and

admiralty procedure. Civil Rule 73(h) was amended at the same time

to provide that the Sec. 1292(a)(3) reference "to admiralty cases

shall be construed to mean admiralty and maritime claims within the

meaning of Rule 9(h)." This provision was transferred to Rule 9(h)

when the Appellate Rules were adopted.

A single case can include both admiralty or maritime claims and

nonadmiralty claims or parties. This combination reveals an

ambiguity in the statement in present Rule 9(h) that an admiralty

"claim" is an admiralty "case." An order "determining the rights

and liabilities of the parties" within the meaning of Sec.

1292(a)(3) may resolve only a nonadmiralty claim, or may

simultaneously resolve interdependent admiralty and nonadmiralty

claims. Can appeal be taken as to the nonadmiralty matter, because

it is part of a case that includes an admiralty claim, or is appeal

limited to the admiralty claim?

The courts of appeals have not achieved full uniformity in

applying the Sec. 1292(a)(3) requirement that an order "determin[e]

the rights and liabilities of the parties." It is common to assert

that the statute should be construed narrowly, under the general

policy that exceptions to the final judgment rule should be

construed narrowly. This policy would suggest that the ambiguity

should be resolved by limiting the interlocutory appeal right to

orders that determine the rights and liabilities of the parties to

an admiralty claim.

A broader view is chosen by this amendment for two reasons. The

statute applies to admiralty "cases," and may itself provide for

appeal from an order that disposes of a nonadmiralty claim that is

joined in a single case with an admiralty claim. Although a rule of

court may help to clarify and implement a statutory grant of

jurisdiction, the line is not always clear between permissible

implementation and impermissible withdrawal of jurisdiction. In

addition, so long as an order truly disposes of the rights and

liabilities of the parties within the meaning of Sec. 1292(a)(3),

it may prove important to permit appeal as to the nonadmiralty

claim. Disposition of the nonadmiralty claim, for example, may make

it unnecessary to consider the admiralty claim and have the same

effect on the case and parties as disposition of the admiralty

claim. Or the admiralty and nonadmiralty claims may be

interdependent. An illustration is provided by Roco Carriers, Ltd.

v. M/V Nurnberg Express, 899 F.2d 1292 (2d Cir. 1990). Claims for

losses of ocean shipments were made against two defendants, one

subject to admiralty jurisdiction and the other not. Summary

judgment was granted in favor of the admiralty defendant and

against the nonadmiralty defendant. The nonadmiralty defendant's

appeal was accepted, with the explanation that the determination of

its liability was "integrally linked with the determination of

non-liability" of the admiralty defendant, and that "section

1292(a)(3) is not limited to admiralty claims; instead, it refers

to admiralty cases." 899 F.2d at 1297. The advantages of permitting

appeal by the nonadmiralty defendant would be particularly clear if

the plaintiff had appealed the summary judgment in favor of the

admiralty defendant.

It must be emphasized that this amendment does not rest on any

particular assumptions as to the meaning of the Sec. 1292(a)(3)

provision that limits interlocutory appeal to orders that determine

the rights and liabilities of the parties. It simply reflects the

conclusion that so long as the case involves an admiralty claim and

an order otherwise meets statutory requirements, the opportunity to

appeal should not turn on the circumstance that the order does - or

does not - dispose of an admiralty claim. No attempt is made to

invoke the authority conferred by 28 U.S.C. Sec. 1292(e) to provide

by rule for appeal of an interlocutory decision that is not

otherwise provided for by other subsections of Sec. 1292.

GAP Report on Rule 9(h). No changes have been made in the

published proposal.

-End-

-CITE-

28 USC APPENDIX Rule 10 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 10. Form of Pleadings

-STATUTE-

(a) Caption; Names of Parties. Every pleading shall contain a

caption setting forth the name of the court, the title of the

action, the file number, and a designation as in Rule 7(a). In the

complaint the title of the action shall include the names of all

the parties, but in other pleadings it is sufficient to state the

name of the first party on each side with an appropriate indication

of other parties.

(b) Paragraphs; Separate Statements. All averments of claim or

defense shall be made in numbered paragraphs, the contents of each

of which shall be limited as far as practicable to a statement of a

single set of circumstances; and a paragraph may be referred to by

number in all succeeding pleadings. Each claim founded upon a

separate transaction or occurrence and each defense other than

denials shall be stated in a separate count or defense whenever a

separation facilitates the clear presentation of the matters set

forth.

(c) Adoption by Reference; Exhibits. Statements in a pleading may

be adopted by reference in a different part of the same pleading or

in another pleading or in any motion. A copy of any written

instrument which is an exhibit to a pleading is a part thereof for

all purposes.

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

The first sentence is derived in part from the opening statement

of [former] Equity Rule 25 (Bill of Complaint - Contents). The

remainder of the rule is an expansion in conformity with usual

state provisions. For numbered paragraphs and separate statements,

see Conn.Gen.Stat. (1930) Sec. 5513; Ill.Rev.Stat. (1937) ch. 110,

Sec. 157 (2); N.Y.R.C.P. (1937) Rule 90. For incorporation by

reference, see N.Y.R.C.P. (1937) Rule 90. For written instruments

as exhibits, see Ill.Rev.Stat. (1937) ch. 110, Sec. 160.

-End-

-CITE-

28 USC APPENDIX Rule 11 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 11. Signing of Pleadings, Motions, and Other Papers;

Representations to Court; Sanctions

-STATUTE-

(a) Signature. Every pleading, written motion, and other paper

shall be signed by at least one attorney of record in the

attorney's individual name, or, if the party is not represented by

an attorney, shall be signed by the party. Each paper shall state

the signer's address and telephone number, if any. Except when

otherwise specifically provided by rule or statute, pleadings need

not be verified or accompanied by affidavit. An unsigned paper

shall be stricken unless omission of the signature is corrected

promptly after being called to the attention of the attorney or

party.

(b) Representations to Court. By presenting to the court (whether

by signing, filing, submitting, or later advocating) a pleading,

written motion, or other paper, an attorney or unrepresented party

is certifying that to the best of the person's knowledge,

information, and belief, formed after an inquiry reasonable under

the circumstances, -

(1) it is not being presented for any improper purpose, such as

to harass or to cause unnecessary delay or needless increase in

the cost of litigation;

(2) the claims, defenses, and other legal contentions therein

are warranted by existing law or by a nonfrivolous argument for

the extension, modification, or reversal of existing law or the

establishment of new law;

(3) the allegations and other factual contentions have

evidentiary support or, if specifically so identified, are likely

to have evidentiary support after a reasonable opportunity for

further investigation or discovery; and

(4) the denials of factual contentions are warranted on the

evidence or, if specifically so identified, are reasonably based

on a lack of information or belief.

(c) Sanctions. If, after notice and a reasonable opportunity to

respond, the court determines that subdivision (b) has been

violated, the court may, subject to the conditions stated below,

impose an appropriate sanction upon the attorneys, law firms, or

parties that have violated subdivision (b) or are responsible for

the violation.

(1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall

be made separately from other motions or requests and shall

describe the specific conduct alleged to violate subdivision

(b). It shall be served as provided in Rule 5, but shall not be

filed with or presented to the court unless, within 21 days

after service of the motion (or such other period as the court

may prescribe), the challenged paper, claim, defense,

contention, allegation, or denial is not withdrawn or

appropriately corrected. If warranted, the court may award to

the party prevailing on the motion the reasonable expenses and

attorney's fees incurred in presenting or opposing the motion.

Absent exceptional circumstances, a law firm shall be held

jointly responsible for violations committed by its partners,

associates, and employees.

(B) On Court's Initiative. On its own initiative, the court

may enter an order describing the specific conduct that appears

to violate subdivision (b) and directing an attorney, law firm,

or party to show cause why it has not violated subdivision (b)

with respect thereto.

(2) Nature of Sanction; Limitations. A sanction imposed for

violation of this rule shall be limited to what is sufficient to

deter repetition of such conduct or comparable conduct by others

similarly situated. Subject to the limitations in subparagraphs

(A) and (B), the sanction may consist of, or include, directives

of a nonmonetary nature, an order to pay a penalty into court,

or, if imposed on motion and warranted for effective deterrence,

an order directing payment to the movant of some or all of the

reasonable attorneys' fees and other expenses incurred as a

direct result of the violation.

(A) Monetary sanctions may not be awarded against a

represented party for a violation of subdivision (b)(2).

(B) Monetary sanctions may not be awarded on the court's

initiative unless the court issues its order to show cause

before a voluntary dismissal or settlement of the claims made

by or against the party which is, or whose attorneys are, to be

sanctioned.

(3) Order. When imposing sanctions, the court shall describe

the conduct determined to constitute a violation of this rule and

explain the basis for the sanction imposed.

(d) Inapplicability to Discovery. Subdivisions (a) through (c) of

this rule do not apply to disclosures and discovery requests,

responses, objections, and motions that are subject to the

provisions of Rules 26 through 37.

-SOURCE-

(As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff.

Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

This is substantially the content of [former] Equity Rules 24

(Signature of Counsel) and 21 (Scandal and Impertinence)

consolidated and unified. Compare [former] Equity Rule 36 (Officers

Before Whom Pleadings Verified). Compare to similar purposes,

English Rules Under the Judicature Act (The Annual Practice, 1937)

O. 19, r. 4, and Great Australian Gold Mining Co. v. Martin, L. R.,

5 Ch.Div. 1, 10 (1877). Subscription of pleadings is required in

many codes. 2 Minn.Stat. (Mason, 1927) Sec. 9265; N.Y.R.C.P. (1937)

Rule 91; 2 N.D.Comp.Laws Ann. (1913) Sec. 7455.

This rule expressly continues any statute which requires a

pleading to be verified or accompanied by an affidavit, such as:

U.S.C., Title 28:

Sec. 381 [former] (Preliminary injunctions and temporary

restraining orders)

Sec. 762 [now 1402] (Suit against the United States).

U.S.C., Title 28, Sec. 829 [now 1927] (Costs; attorney liable

for, when) is unaffected by this rule.

For complaints which must be verified under these rules, see

Rules 23(b) (Secondary Action by Shareholders) and 65

(Injunctions).

For abolition of the rule in equity that the averments of an

answer under oath must be overcome by the testimony of two

witnesses or of one witness sustained by corroborating

circumstances, see Pa.Stat.Ann. (Purdon, 1931) see 12 P.S.Pa., Sec.

1222; for the rule in equity itself, see Greenfield v. Blumenthal,

69 F.2d 294 (C.C.A. 3d, 1934).

NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT

Since its original promulgation, Rule 11 has provided for the

striking of pleadings and the imposition of disciplinary sanctions

to check abuses in the signing of pleadings. Its provisions have

always applied to motions and other papers by virtue of

incorporation by reference in Rule 7(b)(2). The amendment and the

addition of Rule 7(b)(3) expressly confirms this applicability.

Experience shows that in practice Rule 11 has not been effective

in deterring abuses. See 6 Wright & Miller, Federal Practice and

Procedure: Civil Sec. 1334 (1971). There has been considerable

confusion as to (1) the circumstances that should trigger striking

a pleading or motion or taking disciplinary action, (2) the

standard of conduct expected of attorneys who sign pleadings and

motions, and (3) the range of available and appropriate sanctions.

See Rodes, Ripple & Mooney, Sanctions Imposable for Violations of

the Federal Rules of Civil Procedure 64-65, Federal Judicial Center

(1981). The new language is intended to reduce the reluctance of

courts to impose sanctions, see Moore, Federal Practice ¶

7.05, at 1547, by emphasizing the responsibilities of the attorney

and reenforcing those obligations by the imposition of sanctions.

The amended rule attempts to deal with the problem by building

upon and expanding the equitable doctrine permitting the court to

award expenses, including attorney's fees, to a litigant whose

opponent acts in bad faith in instituting or conducting litigation.

See, e.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, (1980);

Hall v. Cole, 412 U.S. 1, 5 (1973). Greater attention by the

district courts to pleading and motion abuses and the imposition of

sanctions when appropriate, should discourage dilatory or abusive

tactics and help to streamline the litigation process by lessening

frivolous claims or defenses.

The expanded nature of the lawyer's certification in the fifth

sentence of amended Rule 11 recognizes that the litigation process

may be abused for purposes other than delay. See, e.g., Browning

Debenture Holders' Committee v. DASA Corp., 560 F.2d 1078 (2d Cir.

1977).

The words "good ground to support" the pleading in the original

rule were interpreted to have both factual and legal elements. See,

e.g., Heart Disease Research Foundation v. General Motors Corp., 15

Fed.R.Serv. 2d 1517, 1519 (S.D.N.Y. 1972). They have been replaced

by a standard of conduct that is more focused.

The new language stresses the need for some prefiling inquiry

into both the facts and the law to satisfy the affirmative duty

imposed by the rule. The standard is one of reasonableness under

the circumstances. See Kinee v. Abraham Lincoln Fed. Sav. & Loan

Ass'n, 365 F.Supp. 975 (E.D.Pa. 1973). This standard is more

stringent than the original good-faith formula and thus it is

expected that a greater range of circumstances will trigger its

violation. See Nemeroff v. Abelson, 620 F.2d 339 (2d Cir. 1980).

The rule is not intended to chill an attorney's enthusiasm or

creativity in pursuing factual or legal theories. The court is

expected to avoid using the wisdom of hindsight and should test the

signer's conduct by inquiring what was reasonable to believe at the

time the pleading, motion, or other paper was submitted. Thus, what

constitutes a reasonable inquiry may depend on such factors as how

much time for investigation was available to the signer; whether he

had to rely on a client for information as to the facts underlying

the pleading, motion, or other paper; whether the pleading, motion,

or other paper was based on a plausible view of the law; or whether

he depended on forwarding counsel or another member of the bar.

The rule does not require a party or an attorney to disclose

privileged communications or work product in order to show that the

signing of the pleading, motion, or other paper is substantially

justified. The provisions of Rule 26(c), including appropriate

orders after in camera inspection by the court, remain available to

protect a party claiming privilege or work product protection.

Amended Rule 11 continues to apply to anyone who signs a

pleading, motion, or other paper. Although the standard is the same

for unrepresented parties, who are obliged themselves to sign the

pleadings, the court has sufficient discretion to take account of

the special circumstances that often arise in pro se situations.

See Haines v. Kerner 404 U.S. 519 (1972).

The provision in the original rule for striking pleadings and

motions as sham and false has been deleted. The passage has rarely

been utilized, and decisions thereunder have tended to confuse the

issue of attorney honesty with the merits of the action. See

generally Risinger, Honesty in Pleading and its Enforcement: Some

"Striking" Problems with Fed. R. Civ. P. 11, 61 Minn.L.Rev. 1

(1976). Motions under this provision generally present issues

better dealt with under Rules 8, 12, or 56. See Murchison v. Kirby,

27 F.R.D. 14 (S.D.N.Y. 1961); 5 Wright & Miller, Federal Practice

and Procedure: Civil Sec. 1334 (1969).

The former reference to the inclusion of scandalous or indecent

matter, which is itself strong indication that an improper purpose

underlies the pleading, motion, or other paper, also has been

deleted as unnecessary. Such matter may be stricken under Rule

12(f) as well as dealt with under the more general language of

amended Rule 11.

The text of the amended rule seeks to dispel apprehensions that

efforts to obtain enforcement will be fruitless by insuring that

the rule will be applied when properly invoked. The word

"sanctions" in the caption, for example, stresses a deterrent

orientation in dealing with improper pleadings, motions or other

papers. This corresponds to the approach in imposing sanctions for

discovery abuses. See National Hockey League v. Metropolitan Hockey

Club, 427 U.S. 639 (1976) (per curiam). And the words "shall

impose" in the last sentence focus the court's attention on the

need to impose sanctions for pleading and motion abuses. The court,

however, retains the necessary flexibility to deal appropriately

with violations of the rule. It has discretion to tailor sanctions

to the particular facts of the case, with which it should be well

acquainted.

The reference in the former text to wilfullness as a prerequisite

to disciplinary action has been deleted. However, in considering

the nature and severity of the sanctions to be imposed, the court

should take account of the state of the attorney's or party's

actual or presumed knowledge when the pleading or other paper was

signed. Thus, for example, when a party is not represented by

counsel, the absence of legal advice is an appropriate factor to be

considered.

Courts currently appear to believe they may impose sanctions on

their own motion. See North American Trading Corp. v. Zale Corp.,

73 F.R.D. 293 (S.D.N.Y. 1979). Authority to do so has been made

explicit in order to overcome the traditional reluctance of courts

to intervene unless requested by one of the parties. The detection

and punishment of a violation of the signing requirement,

encouraged by the amended rule, is part of the court's

responsibility for securing the system's effective operation.

If the duty imposed by the rule is violated, the court should

have the discretion to impose sanctions on either the attorney, the

party the signing attorney represents, or both, or on an

unrepresented party who signed the pleading, and the new rule so

provides. Although Rule 11 has been silent on the point, courts

have claimed the power to impose sanctions on an attorney

personally, either by imposing costs or employing the contempt

technique. See 5 Wright & Miller, Federal Practice and Procedure:

Civil Sec. 1334 (1969); 2A Moore, Federal Practice ¶ 11.02, at

2104 n.8. This power has been used infrequently. The amended rule

should eliminate any doubt as to the propriety of assessing

sanctions against the attorney.

Even though it is the attorney whose signature violates the rule,

it may be appropriate under the circumstances of the case to impose

a sanction on the client. See Browning Debenture Holders' Committee

v. DASA Corp., supra. This modification brings Rule 11 in line with

practice under Rule 37, which allows sanctions for abuses during

discovery to be imposed upon the party, the attorney, or both.

A party seeking sanctions should give notice to the court and the

offending party promptly upon discovering a basis for doing so. The

time when sanctions are to be imposed rests in the discretion of

the trial judge. However, it is anticipated that in the case of

pleadings the sanctions issue under Rule 11 normally will be

determined at the end of the litigation, and in the case of motions

at the time when the motion is decided or shortly thereafter. The

procedure obviously must comport with due process requirements. The

particular format to be followed should depend on the circumstances

of the situation and the severity of the sanction under

consideration. In many situations the judge's participation in the

proceedings provides him with full knowledge of the relevant facts

and little further inquiry will be necessary.

To assure that the efficiencies achieved through more effective

operation of the pleading regimen will not be offset by the cost of

satellite litigation over the imposition of sanctions, the court

must to the extent possible limit the scope of sanction proceedings

to the record. Thus, discovery should be conducted only by leave of

the court, and then only in extraordinary circumstances.

Although the encompassing reference to "other papers" in new Rule

11 literally includes discovery papers, the certification

requirement in that context is governed by proposed new Rule 26(g).

Discovery motions, however, fall within the ambit of Rule 11.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Purpose of revision. This revision is intended to remedy problems

that have arisen in the interpretation and application of the 1983

revision of the rule. For empirical examination of experience under

the 1983 rule, see, e.g., New York State Bar Committee on Federal

Courts, Sanctions and Attorneys' Fees (1987); T. Willging, The Rule

11 Sanctioning Process (1989); American Judicature Society, Report

of the Third Circuit Task Force on Federal Rule of Civil Procedure

11 (S. Burbank ed., 1989); E. Wiggins, T. Willging, and D.

Stienstra, Report on Rule 11 (Federal Judicial Center 1991). For

book-length analyses of the case law, see G. Joseph, Sanctions: The

Federal Law of Litigation Abuse (1989); J. Solovy, The Federal Law

of Sanctions (1991); G. Vairo, Rule 11 Sanctions: Case Law

Perspectives and Preventive Measures (1991).

The rule retains the principle that attorneys and pro se

litigants have an obligation to the court to refrain from conduct

that frustrates the aims of Rule 1. The revision broadens the scope

of this obligation, but places greater constraints on the

imposition of sanctions and should reduce the number of motions for

sanctions presented to the court. New subdivision (d) removes from

the ambit of this rule all discovery requests, responses,

objections, and motions subject to the provisions of Rule 26

through 37.

Subdivision (a). Retained in this subdivision are the provisions

requiring signatures on pleadings, written motions, and other

papers. Unsigned papers are to be received by the Clerk, but then

are to be stricken if the omission of the signature is not

corrected promptly after being called to the attention of the

attorney or pro se litigant. Correction can be made by signing the

paper on file or by submitting a duplicate that contains the

signature. A court may require by local rule that papers contain

additional identifying information regarding the parties or

attorneys, such as telephone numbers to facilitate facsimile

transmissions, though, as for omission of a signature, the paper

should not be rejected for failure to provide such information.

The sentence in the former rule relating to the effect of answers

under oath is no longer needed and has been eliminated. The

provision in the former rule that signing a paper constitutes a

certificate that it has been read by the signer also has been

eliminated as unnecessary. The obligations imposed under

subdivision (b) obviously require that a pleading, written motion,

or other paper be read before it is filed or submitted to the

court.

Subdivisions (b) and (c). These subdivisions restate the

provisions requiring attorneys and pro se litigants to conduct a

reasonable inquiry into the law and facts before signing pleadings,

written motions, and other documents, and prescribing sanctions for

violation of these obligations. The revision in part expands the

responsibilities of litigants to the court, while providing greater

constraints and flexibility in dealing with infractions of the

rule. The rule continues to require litigants to "stop-and-think"

before initially making legal or factual contentions. It also,

however, emphasizes the duty of candor by subjecting litigants to

potential sanctions for insisting upon a position after it is no

longer tenable and by generally providing protection against

sanctions if they withdraw or correct contentions after a potential

violation is called to their attention.

The rule applies only to assertions contained in papers filed

with or submitted to the court. It does not cover matters arising

for the first time during oral presentations to the court, when

counsel may make statements that would not have been made if there

had been more time for study and reflection. However, a litigant's

obligations with respect to the contents of these papers are not

measured solely as of the time they are filed with or submitted to

the court, but include reaffirming to the court and advocating

positions contained in those pleadings and motions after learning

that they cease to have any merit. For example, an attorney who

during a pretrial conference insists on a claim or defense should

be viewed as "presenting to the court" that contention and would be

subject to the obligations of subdivision (b) measured as of that

time. Similarly, if after a notice of removal is filed, a party

urges in federal court the allegations of a pleading filed in state

court (whether as claims, defenses, or in disputes regarding

removal or remand), it would be viewed as "presenting" - and hence

certifying to the district court under Rule 11 - those allegations.

The certification with respect to allegations and other factual

contentions is revised in recognition that sometimes a litigant may

have good reason to believe that a fact is true or false but may

need discovery, formal or informal, from opposing parties or third

persons to gather and confirm the evidentiary basis for the

allegation. Tolerance of factual contentions in initial pleadings

by plaintiffs or defendants when specifically identified as made on

information and belief does not relieve litigants from the

obligation to conduct an appropriate investigation into the facts

that is reasonable under the circumstances; it is not a license to

join parties, make claims, or present defenses without any factual

basis or justification. Moreover, if evidentiary support is not

obtained after a reasonable opportunity for further investigation

or discovery, the party has a duty under the rule not to persist

with that contention. Subdivision (b) does not require a formal

amendment to pleadings for which evidentiary support is not

obtained, but rather calls upon a litigant not thereafter to

advocate such claims or defenses.

The certification is that there is (or likely will be)

"evidentiary support" for the allegation, not that the party will

prevail with respect to its contention regarding the fact. That

summary judgment is rendered against a party does not necessarily

mean, for purposes of this certification, that it had no

evidentiary support for its position. On the other hand, if a party

has evidence with respect to a contention that would suffice to

defeat a motion for summary judgment based thereon, it would have

sufficient "evidentiary support" for purposes of Rule 11.

Denials of factual contentions involve somewhat different

considerations. Often, of course, a denial is premised upon the

existence of evidence contradicting the alleged fact. At other

times a denial is permissible because, after an appropriate

investigation, a party has no information concerning the matter or,

indeed, has a reasonable basis for doubting the credibility of the

only evidence relevant to the matter. A party should not deny an

allegation it knows to be true; but it is not required, simply

because it lacks contradictory evidence, to admit an allegation

that it believes is not true.

The changes in subdivisions (b)(3) and (b)(4) will serve to

equalize the burden of the rule upon plaintiffs and defendants, who

under Rule 8(b) are in effect allowed to deny allegations by

stating that from their initial investigation they lack sufficient

information to form a belief as to the truth of the allegation. If,

after further investigation or discovery, a denial is no longer

warranted, the defendant should not continue to insist on that

denial. While sometimes helpful, formal amendment of the pleadings

to withdraw an allegation or denial is not required by subdivision

(b).

Arguments for extensions, modifications, or reversals of existing

law or for creation of new law do not violate subdivision (b)(2)

provided they are "nonfrivolous." This establishes an objective

standard, intended to eliminate any "empty-head pure-heart"

justification for patently frivolous arguments. However, the extent

to which a litigant has researched the issues and found some

support for its theories even in minority opinions, in law review

articles, or through consultation with other attorneys should

certainly be taken into account in determining whether paragraph

(2) has been violated. Although arguments for a change of law are

not required to be specifically so identified, a contention that is

so identified should be viewed with greater tolerance under the

rule.

The court has available a variety of possible sanctions to impose

for violations, such as striking the offending paper; issuing an

admonition, reprimand, or censure; requiring participation in

seminars or other educational programs; ordering a fine payable to

the court; referring the matter to disciplinary authorities (or, in

the case of government attorneys, to the Attorney General,

Inspector General, or agency head), etc. See Manual for Complex

Litigation, Second, Sec. 42.3. The rule does not attempt to

enumerate the factors a court should consider in deciding whether

to impose a sanction or what sanctions would be appropriate in the

circumstances; but, for emphasis, it does specifically note that a

sanction may be nonmonetary as well as monetary. Whether the

improper conduct was willful, or negligent; whether it was part of

a pattern of activity, or an isolated event; whether it infected

the entire pleading, or only one particular count or defense;

whether the person has engaged in similar conduct in other

litigation; whether it was intended to injure; what effect it had

on the litigation process in time or expense; whether the

responsible person is trained in the law; what amount, given the

financial resources of the responsible person, is needed to deter

that person from repetition in the same case; what amount is needed

to deter similar activity by other litigants: all of these may in a

particular case be proper considerations. The court has significant

discretion in determining what sanctions, if any, should be imposed

for a violation, subject to the principle that the sanctions should

not be more severe than reasonably necessary to deter repetition of

the conduct by the offending person or comparable conduct by

similarly situated persons.

Since the purpose of Rule 11 sanctions is to deter rather than to

compensate, the rule provides that, if a monetary sanction is

imposed, it should ordinarily be paid into court as a penalty.

However, under unusual circumstances, particularly for

[subdivision] (b)(1) violations, deterrence may be ineffective

unless the sanction not only requires the person violating the rule

to make a monetary payment, but also directs that some or all of

this payment be made to those injured by the violation.

Accordingly, the rule authorizes the court, if requested in a

motion and if so warranted, to award attorney's fees to another

party. Any such award to another party, however, should not exceed

the expenses and attorneys' fees for the services directly and

unavoidably caused by the violation of the certification

requirement. If, for example, a wholly unsupportable count were

included in a multi-count complaint or counterclaim for the purpose

of needlessly increasing the cost of litigation to an impecunious

adversary, any award of expenses should be limited to those

directly caused by inclusion of the improper count, and not those

resulting from the filing of the complaint or answer itself. The

award should not provide compensation for services that could have

been avoided by an earlier disclosure of evidence or an earlier

challenge to the groundless claims or defenses. Moreover, partial

reimbursement of fees may constitute a sufficient deterrent with

respect to violations by persons having modest financial resources.

In cases brought under statutes providing for fees to be awarded to

prevailing parties, the court should not employ cost-shifting under

this rule in a manner that would be inconsistent with the standards

that govern the statutory award of fees, such as stated in

Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).

The sanction should be imposed on the persons - whether

attorneys, law firms, or parties - who have violated the rule or

who may be determined to be responsible for the violation. The

person signing, filing, submitting, or advocating a document has a

nondelegable responsibility to the court, and in most situations is

the person to be sanctioned for a violation. Absent exceptional

circumstances, a law firm is to be held also responsible when, as a

result of a motion under subdivision (c)(1)(A), one of its

partners, associates, or employees is determined to have violated

the rule. Since such a motion may be filed only if the offending

paper is not withdrawn or corrected within 21 days after service of

the motion, it is appropriate that the law firm ordinarily be

viewed as jointly responsible under established principles of

agency. This provision is designed to remove the restrictions of

the former rule. Cf. Pavelic & LeFlore v. Marvel Entertainment

Group, 493 U.S. 120 (1989) (1983 version of Rule 11 does not permit

sanctions against law firm of attorney signing groundless

complaint).

The revision permits the court to consider whether other

attorneys in the firm, co-counsel, other law firms, or the party

itself should be held accountable for their part in causing a

violation. When appropriate, the court can make an additional

inquiry in order to determine whether the sanction should be

imposed on such persons, firms, or parties either in addition to

or, in unusual circumstances, instead of the person actually making

the presentation to the court. For example, such an inquiry may be

appropriate in cases involving governmental agencies or other

institutional parties that frequently impose substantial

restrictions on the discretion of individual attorneys employed by

it.

Sanctions that involve monetary awards (such as a fine or an

award of attorney's fees) may not be imposed on a represented party

for causing a violation of subdivision (b)(2), involving frivolous

contentions of law. Monetary responsibility for such violations is

more properly placed solely on the party's attorneys. With this

limitation, the rule should not be subject to attack under the

Rules Enabling Act. See Willy v. Coastal Corp., __ U.S. __ (1992);

Business Guides, Inc. v. Chromatic Communications Enter. Inc., __

U.S. __ (1991). This restriction does not limit the court's power

to impose sanctions or remedial orders that may have collateral

financial consequences upon a party, such as dismissal of a claim,

preclusion of a defense, or preparation of amended pleadings.

Explicit provision is made for litigants to be provided notice of

the alleged violation and an opportunity to respond before

sanctions are imposed. Whether the matter should be decided solely

on the basis of written submissions or should be scheduled for oral

argument (or, indeed, for evidentiary presentation) will depend on

the circumstances. If the court imposes a sanction, it must, unless

waived, indicate its reasons in a written order or on the record;

the court should not ordinarily have to explain its denial of a

motion for sanctions. Whether a violation has occurred and what

sanctions, if any, to impose for a violation are matters committed

to the discretion of the trial court; accordingly, as under current

law, the standard for appellate review of these decisions will be

for abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496

U.S. 384 (1990) (noting, however, that an abuse would be

established if the court based its ruling on an erroneous view of

the law or on a clearly erroneous assessment of the evidence).

The revision leaves for resolution on a case-by-case basis,

considering the particular circumstances involved, the question as

to when a motion for violation of Rule 11 should be served and

when, if filed, it should be decided. Ordinarily the motion should

be served promptly after the inappropriate paper is filed, and, if

delayed too long, may be viewed as untimely. In other

circumstances, it should not be served until the other party has

had a reasonable opportunity for discovery. Given the "safe harbor"

provisions discussed below, a party cannot delay serving its Rule

11 motion until conclusion of the case (or judicial rejection of

the offending contention).

Rule 11 motions should not be made or threatened for minor,

inconsequential violations of the standards prescribed by

subdivision (b). They should not be employed as a discovery device

or to test the legal sufficiency or efficacy of allegations in the

pleadings; other motions are available for those purposes. Nor

should Rule 11 motions be prepared to emphasize the merits of a

party's position, to exact an unjust settlement, to intimidate an

adversary into withdrawing contentions that are fairly debatable,

to increase the costs of litigation, to create a conflict of

interest between attorney and client, or to seek disclosure of

matters otherwise protected by the attorney-client privilege or the

work-product doctrine. As under the prior rule, the court may defer

its ruling (or its decision as to the identity of the persons to be

sanctioned) until final resolution of the case in order to avoid

immediate conflicts of interest and to reduce the disruption

created if a disclosure of attorney-client communications is needed

to determine whether a violation occurred or to identify the person

responsible for the violation.

The rule provides that requests for sanctions must be made as a

separate motion, i.e., not simply included as an additional prayer

for relief contained in another motion. The motion for sanctions is

not, however, to be filed until at least 21 days (or such other

period as the court may set) after being served. If, during this

period, the alleged violation is corrected, as by withdrawing

(whether formally or informally) some allegation or contention, the

motion should not be filed with the court. These provisions are

intended to provide a type of "safe harbor" against motions under

Rule 11 in that a party will not be subject to sanctions on the

basis of another party's motion unless, after receiving the motion,

it refuses to withdraw that position or to acknowledge candidly

that it does not currently have evidence to support a specified

allegation. Under the former rule, parties were sometimes reluctant

to abandon a questionable contention lest that be viewed as

evidence of a violation of Rule 11; under the revision, the timely

withdrawal of a contention will protect a party against a motion

for sanctions.

To stress the seriousness of a motion for sanctions and to define

precisely the conduct claimed to violate the rule, the revision

provides that the "safe harbor" period begins to run only upon

service of the motion. In most cases, however, counsel should be

expected to give informal notice to the other party, whether in

person or by a telephone call or letter, of a potential violation

before proceeding to prepare and serve a Rule 11 motion.

As under former Rule 11, the filing of a motion for sanctions is

itself subject to the requirements of the rule and can lead to

sanctions. However, service of a cross motion under Rule 11 should

rarely be needed since under the revision the court may award to

the person who prevails on a motion under Rule 11 - whether the

movant or the target of the motion - reasonable expenses, including

attorney's fees, incurred in presenting or opposing the motion.

The power of the court to act on its own initiative is retained,

but with the condition that this be done through a show cause

order. This procedure provides the person with notice and an

opportunity to respond. The revision provides that a monetary

sanction imposed after a court-initiated show cause order be

limited to a penalty payable to the court and that it be imposed

only if the show cause order is issued before any voluntary

dismissal or an agreement of the parties to settle the claims made

by or against the litigant. Parties settling a case should not be

subsequently faced with an unexpected order from the court leading

to monetary sanctions that might have affected their willingness to

settle or voluntarily dismiss a case. Since show cause orders will

ordinarily be issued only in situations that are akin to a contempt

of court, the rule does not provide a "safe harbor" to a litigant

for withdrawing a claim, defense, etc., after a show cause order

has been issued on the court's own initiative. Such corrective

action, however, should be taken into account in deciding what - if

any - sanction to impose if, after consideration of the litigant's

response, the court concludes that a violation has occurred.

Subdivision (d). Rules 26(g) and 37 establish certification

standards and sanctions that apply to discovery disclosures,

requests, responses, objections, and motions. It is appropriate

that Rules 26 through 37, which are specially designed for the

discovery process, govern such documents and conduct rather than

the more general provisions of Rule 11. Subdivision (d) has been

added to accomplish this result.

Rule 11 is not the exclusive source for control of improper

presentations of claims, defenses, or contentions. It does not

supplant statutes permitting awards of attorney's fees to

prevailing parties or alter the principles governing such awards.

It does not inhibit the court in punishing for contempt, in

exercising its inherent powers, or in imposing sanctions, awarding

expenses, or directing remedial action authorized under other rules

or under 28 U.S.C. Sec. 1927. See Chambers v. NASCO, __ U.S. __

(1991). Chambers cautions, however, against reliance upon inherent

powers if appropriate sanctions can be imposed under provisions

such as Rule 11, and the procedures specified in Rule 11 - notice,

opportunity to respond, and findings - should ordinarily be

employed when imposing a sanction under the court's inherent

powers. Finally, it should be noted that Rule 11 does not preclude

a party from initiating an independent action for malicious

prosecution or abuse of process.

-End-

-CITE-

28 USC APPENDIX Rule 12 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 12. Defenses and Objections - When and How Presented - By

Pleading or Motion - Motion for Judgment on the Pleadings

-STATUTE-

(a) When Presented.

(1) Unless a different time is prescribed in a statute of the

United States, a defendant shall serve an answer

(A) within 20 days after being served with the summons and

complaint, or

(B) if service of the summons has been timely waived on

request under Rule 4(d), within 60 days after the date when the

request for waiver was sent, or within 90 days after that date

if the defendant was addressed outside any judicial district of

the United States.

(2) A party served with a pleading stating a cross-claim

against that party shall serve an answer thereto within 20 days

after being served. The plaintiff shall serve a reply to a

counterclaim in the answer within 20 days after service of the

answer, or, if a reply is ordered by the court, within 20 days

after service of the order, unless the order otherwise directs.

(3)(A) The United States, an agency of the United States, or an

officer or employee of the United States sued in an official

capacity, shall serve an answer to the complaint or cross-claim -

or a reply to a counterclaim - within 60 days after the United

States attorney is served with the pleading asserting the claim.

(B) An officer or employee of the United States sued in an

individual capacity for acts or omissions occurring in connection

with the performance of duties on behalf of the United States

shall serve an answer to the complaint or cross-claim - or a

reply to a counterclaim - within 60 days after service on the

officer or employee, or service on the United States attorney,

whichever is later.

(4) Unless a different time is fixed by court order, the

service of a motion permitted under this rule alters these

periods of time as follows:

(A) if the court denies the motion or postpones its

disposition until the trial on the merits, the responsive

pleading shall be served within 10 days after notice of the

court's action; or

(B) if the court grants a motion for a more definite

statement, the responsive pleading shall be served within 10

days after the service of the more definite statement.

(b) How Presented. Every defense, in law or fact, to a claim for

relief in any pleading, whether a claim, counterclaim, cross-claim,

or third-party claim, shall be asserted in the responsive pleading

thereto if one is required, except that the following defenses may

at the option of the pleader be made by motion: (1) lack of

jurisdiction over the subject matter, (2) lack of jurisdiction over

the person, (3) improper venue, (4) insufficiency of process, (5)

insufficiency of service of process, (6) failure to state a claim

upon which relief can be granted, (7) failure to join a party under

Rule 19. A motion making any of these defenses shall be made before

pleading if a further pleading is permitted. No defense or

objection is waived by being joined with one or more other defenses

or objections in a responsive pleading or motion. If a pleading

sets forth a claim for relief to which the adverse party is not

required to serve a responsive pleading, the adverse party may

assert at the trial any defense in law or fact to that claim for

relief. If, on a motion asserting the defense numbered (6) to

dismiss for failure of the pleading to state a claim upon which

relief can be granted, matters outside the pleading are presented

to and not excluded by the court, the motion shall be treated as

one for summary judgment and disposed of as provided in Rule 56,

and all parties shall be given reasonable opportunity to present

all material made pertinent to such a motion by Rule 56.

(c) Motion for Judgment on the Pleadings. After the pleadings are

closed but within such time as not to delay the trial, any party

may move for judgment on the pleadings. If, on a motion for

judgment on the pleadings, matters outside the pleadings are

presented to and not excluded by the court, the motion shall be

treated as one for summary judgment and disposed of as provided in

Rule 56, and all parties shall be given reasonable opportunity to

present all material made pertinent to such a motion by Rule 56.

(d) Preliminary Hearings. The defenses specifically enumerated

(1)-(7) in subdivision (b) of this rule, whether made in a pleading

or by motion, and the motion for judgment mentioned in subdivision

(c) of this rule shall be heard and determined before trial on

application of any party, unless the court orders that the hearing

and determination thereof be deferred until the trial.

(e) Motion for More Definite Statement. If a pleading to which a

responsive pleading is permitted is so vague or ambiguous that a

party cannot reasonably be required to frame a responsive pleading,

the party may move for a more definite statement before interposing

a responsive pleading. The motion shall point out the defects

complained of and the details desired. If the motion is granted and

the order of the court is not obeyed within 10 days after notice of

the order or within such other time as the court may fix, the court

may strike the pleading to which the motion was directed or make

such order as it deems just.

(f) Motion To Strike. Upon motion made by a party before

responding to a pleading or, if no responsive pleading is permitted

by these rules, upon motion made by a party within 20 days after

the service of the pleading upon the party or upon the court's own

initiative at any time, the court may order stricken from any

pleading any insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter.

(g) Consolidation of Defenses in Motion. A party who makes a

motion under this rule may join with it any other motions herein

provided for and then available to the party. If a party makes a

motion under this rule but omits therefrom any defense or objection

then available to the party which this rule permits to be raised by

motion, the party shall not thereafter make a motion based on the

defense or objection so omitted, except a motion as provided in

subdivision (h)(2) hereof on any of the grounds there stated.

(h) Waiver or Preservation of Certain Defenses.

(1) A defense of lack of jurisdiction over the person, improper

venue, insufficiency of process, or insufficiency of service of

process is waived (A) if omitted from a motion in the

circumstances described in subdivision (g), or (B) if it is

neither made by motion under this rule nor included in a

responsive pleading or an amendment thereof permitted by Rule

15(a) to be made as a matter of course.

(2) A defense of failure to state a claim upon which relief can

be granted, a defense of failure to join a party indispensable

under Rule 19, and an objection of failure to state a legal

defense to a claim may be made in any pleading permitted or

ordered under Rule 7(a), or by motion for judgment on the

pleadings, or at the trial on the merits.

(3) Whenever it appears by suggestion of the parties or

otherwise that the court lacks jurisdiction of the subject

matter, the court shall dismiss the action.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). 1. Compare [former] Equity Rules 12

(Issue of Subpoena - Time for Answer) and 31 (Reply - When Required

- When Cause at Issue); 4 Mont.Rev.Codes Ann. (1935) Secs. 9107,

9158; N.Y.C.P.A. (1937) Sec. 263; N.Y.R.C.P. (1937) Rules 109-111.

2. U.S.C., Title 28, Sec. 763 [now 547] (Petition in action

against United States; service; appearance by district attorney)

provides that the United States as a defendant shall have 60 days

within which to answer or otherwise defend. This and other statutes

which provide 60 days for the United States or an officer or agency

thereof to answer or otherwise defend are continued by this rule.

Insofar as any statutes not excepted in Rule 81 provide a different

time for a defendant to defend, such statutes are modified. See

U.S.C., Title 28, [former] Sec. 45 (District courts; practice and

procedure in certain cases under the interstate commerce laws) (30

days).

3. Compare the last sentence of [former] Equity Rule 29 (Defenses

- How Presented) and N.Y.C.P.A. (1937) Sec. 283. See Rule 15(a) for

time within which to plead to an amended pleading.

Note to Subdivisions (b) and (d). 1. See generally [former]

Equity Rules 29 (Defenses - How Presented), 33 (Testing Sufficiency

of Defense), 43 (Defect of Parties - Resisting Objection), and 44

(Defect of Parties - Tardy Objection); N.Y.C.P.A. (1937) Secs.

277-280; N.Y.R.C.P. (1937) Rules 106-112; English Rules Under the

Judicature Act (The Annual Practice, 1937) O. 25, r.r. 1-4; Clark,

Code Pleading (1928) pp. 371-381.

2. For provisions authorizing defenses to be made in the answer

or reply see English Rules Under the Judicature Act (The Annual

Practice, 1937) O. 25, r.r. 1-4; 1 Miss.Code Ann. (1930) Secs. 378,

379. Compare [former] Equity Rule 29 (Defenses - How Presented);

U.S.C., Title 28, [former] Sec. 45 (District Courts; practice and

procedure in certain cases under the interstate commerce laws).

U.S.C., Title 28, [former] Sec. 45, substantially continued by this

rule, provides: "No replication need be filed to the answer, and

objections to the sufficiency of the petition or answer as not

setting forth a cause of action or defense must be taken at the

final hearing or by motion to dismiss the petition based on said

grounds, which motion may be made at any time before answer is

filed." Compare Calif.Code Civ.Proc. (Deering, 1937) Sec. 433; 4

Nev.Comp.Laws (Hillyer, 1929) Sec. 8600. For provisions that the

defendant may demur and answer at the same time, see Calif.Code

Civ.Proc. (Deering, 1937) Sec. 431; 4 Nev.Comp.Laws (Hillyer, 1929)

Sec. 8598.

3. [Former] Equity Rule 29 (Defenses - How Presented) abolished

demurrers and provided that defenses in point of law arising on the

face of the bill should be made by motion to dismiss or in the

answer, with further provision that every such point of law going

to the whole or material part of the cause or causes stated might

be called up and disposed of before final hearing "at the

discretion of the court." Likewise many state practices have

abolished the demurrer, or retain it only to attack substantial and

not formal defects. See 6 Tenn.Code Ann. (Williams, 1934) Sec.

8784; Ala.Code Ann. (Michie, 1928) Sec. 9479; 2 Mass.Gen.Laws

(Ter.Ed., 1932) ch. 231, Secs. 15-18; Kansas Gen.Stat.Ann. (1935)

Secs. 60-705, 60-706.

Note to Subdivision (c). Compare [former] Equity Rule 33 (Testing

Sufficiency of Defense); N.Y.R.C.P. (1937) Rules 111 and 112.

Note to Subdivisions (e) and (f). Compare [former] Equity Rules

20 (Further and Particular Statement in Pleading May Be Required)

and 21 (Scandal and Impertinence); English Rules Under the

Judicature Act (The Annual Practice, 1937) O. 19, r.r. 7, 7a, 7b,

8; 4 Mont.Rev.Codes Ann. (1935) Secs. 9166, 9167; N.Y.C.P.A. (1937)

Sec. 247; N.Y.R.C.P. (1937) Rules 103, 115, 116, 117;

Wyo.Rev.Stat.Ann. (Courtright, 1931) Secs. 89-1033, 89-1034.

Note to Subdivision (g). Compare Rules of the District Court of

the United States for the District of Columbia (1937), Equity Rule

11; N.M. Rules of Pleading, Practice and Procedure, 38 N.M.Rep. vii

[105-408] (1934); Wash.Gen.Rules of the Superior Courts, 1

Wash.Rev.Stat.Ann. (Remington, 1932) p. 160, Rule VI (e) and (f).

Note to Subdivision (h). Compare Calif.Code Civ.Proc. (Deering,

1937) Sec. 434; 2 Minn.Stat. (Mason, 1927) Sec. 9252; N.Y.C.P.A.

(1937) Secs. 278 and 279; Wash.Gen.Rules of the Superior Courts, 1

Wash.Rev.Stat.Ann. (Remington, 1932) p. 160, Rule VI (e). This rule

continues U.S.C., Title 28, Sec. 80 [now 1359, 1447, 1919]

(Dismissal or remand) (of action over which district court lacks

jurisdiction), while U.S.C., Title 28, Sec. 399 [now 1653]

(Amendments to show diverse citizenship) is continued by Rule 15.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Subdivision (a). Various minor alterations in language have been

made to improve the statement of the rule. All references to bills

of particulars have been stricken in accordance with changes made

in subdivision (e).

Subdivision (b). The addition of defense (7), "failure to join an

indispensable party", cures an omission in the rules, which are

silent as to the mode of raising such failure. See Commentary,

Manner of Raising Objection of Non-Joinder of Indispensable Party

(1940) 2 Fed.Rules Serv. 658 and (1942) 5 Fed.Rules Serv. 820. In

one case, United States v. Metropolitan Life Ins. Co. (E.D.Pa.

1941) 36 F.Supp. 399, the failure to join an indispensable party

was raised under Rule 12(c).

Rule 12(b)(6), permitting a motion to dismiss for failure of the

complaint to state a claim on which relief can be granted, is

substantially the same as the old demurrer for failure of a

pleading to state a cause of action. Some courts have held that as

the rule by its terms refers to statements in the complaint,

extraneous matter on affidavits, depositions or otherwise, may not

be introduced in support of the motion, or to resist it. On the

other hand, in many cases the district courts have permitted the

introduction of such material. When these cases have reached

circuit courts of appeals in situations where the extraneous

material so received shows that there is no genuine issue as to any

material question of fact and that on the undisputed facts as

disclosed by the affidavits or depositions, one party or the other

is entitled to judgment as a matter of law, the circuit courts,

properly enough, have been reluctant to dispose of the case merely

on the face of the pleading, and in the interest of prompt

disposition of the action have made a final disposition of it. In

dealing with such situations the Second Circuit has made the sound

suggestion that whatever its label or original basis, the motion

may be treated as a motion for summary judgment and disposed of as

such. Samara v. United States (C.C.A.2d, 1942) 129 F.(2d) 594,

cert. den. (1942) 317 U.S. 686; Boro Hall Corp. v. General Motors

Corp. (C.C.A.2d, 1942) 124 F.(2d) 822, cert. den. (1943) 317 U.S.

695. See also Kithcart v. Metropolitan Life Ins. Co. (C.C.A.8th,

1945) 150 F.(2d) 997, aff'g 62 F.Supp. 93.

It has also been suggested that this practice could be justified

on the ground that the federal rules permit "speaking" motions. The

Committee entertains the view that on motion under Rule 12(b)(6) to

dismiss for failure of the complaint to state a good claim, the

trial court should have authority to permit the introduction of

extraneous matter, such as may be offered on a motion for summary

judgment, and if it does not exclude such matter the motion should

then be treated as a motion for summary judgment and disposed of in

the manner and on the conditions stated in Rule 56 relating to

summary judgments, and, of course, in such a situation, when the

case reaches the circuit court of appeals, that court should treat

the motion in the same way. The Committee believes that such

practice, however, should be tied to the summary judgment rule. The

term "speaking motion" is not mentioned in the rules, and if there

is such a thing its limitations are undefined. Where extraneous

matter is received, by tying further proceedings to the summary

judgment rule the courts have a definite basis in the rules for

disposing of the motion.

The Committee emphasizes particularly the fact that the summary

judgment rule does not permit a case to be disposed of by judgment

on the merits on affidavits, which disclose a conflict on a

material issue of fact, and unless this practice is tied to the

summary judgment rule, the extent to which a court, on the

introduction of such extraneous matter, may resolve questions of

fact on conflicting proof would be left uncertain.

The decisions dealing with this general situation may be

generally grouped as follows: (1) cases dealing with the use of

affidavits and other extraneous material on motions; (2) cases

reversing judgments to prevent final determination on mere pleading

allegations alone.

Under group (1) are: Boro Hall Corp. v. General Motors Corp.

(C.C.A.2d, 1942) 124 F.(2d) 822, cert. den. (1943) 317 U.S. 695;

Gallup v. Caldwell (C.C.A.3d, 1941) 120 F.(2d) 90; Central Mexico

Light & Power Co. v. Munch (C.C.A.2d, 1940) 116 F.(2d) 85; National

Labor Relations Board v. Montgomery Ward & Co. (App.D.C. 1944) 144

F.(2d) 528, cert. den. (1944) 65 S.Ct. 134; Urquhart v. American-La

France Foamite Corp. (App.D.C. 1944) 144 F.(2d) 542; Samara v.

United States (C.C.A.2d, 1942) 129 F.(2d) 594; Cohen v. American

Window Glass Co. (C.C.A.2d, 1942) 126 F.(2d) 111; Sperry Products

Inc. v. Association of American Railroads (C.C.A.2d, 1942) 132

F.(2d) 408; Joint Council Dining Car Employees Local 370 v.

Delaware, Lackawanna and Western R. Co. (C.C.A.2d, 1946) 157 F.(2d)

417; Weeks v. Bareco Oil Co. (C.C.A.7th, 1941) 125 F.(2d) 84;

Carroll v. Morrison Hotel Corp. (C.C.A.7th, 1945) 149 F.(2d) 404;

Victory v. Manning (C.C.A.3rd, 1942) 128 F.(2d) 415; Locals No.

1470, No. 1469, and 1512 of International Longshoremen's

Association v. Southern Pacific Co. (C.C.A.5th, 1942) 131 F.(2d)

605; Lucking v. Delano (C.C.A.6th, 1942) 129 F.(2d) 283; San

Francisco Lodge No. 68 of International Association of Machinists

v. Forrestal (N.D.Cal. 1944) 58 F.Supp. 466; Benson v. Export

Equipment Corp. (N. Mex. 1945) 164 P.2d 380 (construing New Mexico

rule identical with Rule 12(b)(6); F. E. Myers & Bros. Co. v. Gould

Pumps, Inc. (W.D.N.Y. 1946) 9 Fed.Rules Serv. 12b.33, Case 2, 5

F.R.D. 132. Cf. Kohler v. Jacobs (C.C.A.5th, 1943) 138 F.(2d) 440;

Cohen v. United States (C.C.A.8th, 1942) 129 F.(2d) 733.

Under group (2) are: Sparks v. England (C.C.A.8th, 1940) 113

F.(2d) 579; Continental Collieries, Inc. v. Shober (C.C.A.3d, 1942)

130 F.(2d) 631; Downey v. Palmer (C.C.A.2d 1940) 114 F.(2d) 116;

DeLoach v. Crowley's Inc. (C.C.A.5th, 1942) 128 F.(2d) 378; Leimer

v. State Mutual Life Assurance Co. of Worcester, Mass. (C.C.A.8th,

1940) 108 F.(2d) 302; Rossiter v. Vogel (C.C.A.2d, 1943) 134 F.(2d)

908, compare s. c. (C.C.A.2d, 1945) 148 F.(2d) 292; Karl Kiefer

Machine Co. v. United States Bottlers Machinery Co. (C.C.A.7th,

1940) 113 F.(2d) 356; Chicago Metallic Mfg. Co. v. Edward Katzinger

Co. (C.C.A.7th, 1941) 123 F.(2d) 518; Louisiana Farmers' Protective

Union, Inc. v. Great Atlantic & Pacific Tea Co. of America, Inc.

(C.C.A.8th, 1942) 131 F.(2d) 419; Publicity Bldg. Realty Corp. v.

Hannegan (C.C.A.8th, 1943) 139 F.(2d) 583; Dioguardi v. Durning

(C.C.A.2d, 1944) 139 F.(2d) 774; Package Closure Corp. v. Sealright

Co., Inc. (C.C.A.2d, 1944) 141 F.(2d) 972; Tahir Erk v. Glenn L.

Martin Co. (C.C.A.4th, 1941) 116 F.(2d) 865; Bell v. Preferred Life

Assurance Society of Montgomery, Ala. (1943) 320 U.S. 238.

The addition at the end of subdivision (b) makes it clear that on

a motion under Rule 12(b)(6) extraneous material may not be

considered if the court excludes it, but that if the court does not

exclude such material the motion shall be treated as a motion for

summary judgment and disposed of as provided in Rule 56. It will

also be observed that if a motion under Rule 12(b)(6) is thus

converted into a summary judgment motion, the amendment insures

that both parties shall be given a reasonable opportunity to submit

affidavits and extraneous proofs to avoid taking a party by

surprise through the conversion of the motion into a motion for

summary judgment. In this manner and to this extent the amendment

regularizes the practice above described. As the courts are already

dealing with cases in this way, the effect of this amendment is

really only to define the practice carefully and apply the

requirements of the summary judgment rule in the disposition of the

motion.

Subdivision (c). The sentence appended to subdivision (c)

performs the same function and is grounded on the same reasons as

the corresponding sentence added in subdivision (b).

Subdivision (d). The change here was made necessary because of

the addition of defense (7) in subdivision (b).

Subdivision (e). References in this subdivision to a bill of

particulars have been deleted, and the motion provided for is

confined to one for a more definite statement, to be obtained only

in cases where the movant cannot reasonably be required to frame an

answer or other responsive pleading to the pleading in question.

With respect to preparations for trial, the party is properly

relegated to the various methods of examination and discovery

provided in the rules for that purpose. Slusher v. Jones (E.D.Ky.

1943) 7 Fed.Rules Serv. 12e.231, Case 5, 3 F.R.D. 168; Best Foods,

Inc. v. General Mills, Inc. (D.Del. 1943) 7 Fed.Rules Serv.

12e.231, Case 7, 3 F.R.D. 275; Braden v. Callaway (E.D.Tenn. 1943)

8 Fed.Rules Serv. 12e.231, Case 1 (". . . most courts . . .

conclude that the definiteness required is only such as will be

sufficient for the party to prepare responsive pleadings").

Accordingly, the reference to the 20 day time limit has also been

eliminated, since the purpose of this present provision is to state

a time period where the motion for a bill is made for the purpose

of preparing for trial.

Rule 12(e) as originally drawn has been the subject of more

judicial rulings than any other part of the rules, and has been

much criticized by commentators, judges and members of the bar. See

general discussion and cases cited in 1 Moore's Federal Practice

(1938), Cum.Supplement Sec. 12.07, under "Page 657"; also,

Holtzoff, New Federal Procedure and the Courts (1940) 35-41. And

compare vote of Second Circuit Conference of Circuit and District

Judges (June 1940) recommending the abolition of the bill of

particulars; Sun Valley Mfg. Co. v. Mylish (E.D.Pa. 1944) 8

Fed.Rules Serv. 12e.231, Case 6 ("Our experience . . . has

demonstrated not only that 'the office of the bill of particulars

is fast becoming obsolete' . . . but that in view of the adequate

discovery procedure available under the Rules, motions for bills of

particulars should be abolished altogether."); Walling v. American

Steamship Co. (W.D.N.Y. 1945) 4 F.R.D. 355, 8 Fed.Rules Serv.

12e.244, Case 8 (". . . the adoption of the rule was ill advised.

It has led to confusion, duplication and delay.") The tendency of

some courts freely to grant extended bills of particulars has

served to neutralize any helpful benefits derived from Rule 8, and

has overlooked the intended use of the rules on depositions and

discovery. The words "or to prepare for trial" - eliminated by the

proposed amendment - have sometimes been seized upon as grounds for

compulsory statement in the opposing pleading of all the details

which the movant would have to meet at the trial. On the other

hand, many courts have in effect read these words out of the rule.

See Walling v. Alabama Pipe Co. (W.D.Mo. 1942) 6 Fed.Rules Serv.

12e.244, Case 7; Fleming v. Mason & Dixon Lines, Inc. (E.D.Tenn.

1941) 42 F.Supp. 230; Kellogg Co. v. National Biscuit Co. (D.N.J.

1941) 38 F.Supp. 643; Brown v. H. L. Green Co. (S.D.N.Y. 1943) 7

Fed.Rules Serv. 12e.231, Case 6; Pedersen v. Standard Accident Ins.

Co. (W.D.Mo. 1945) 8 Fed.Rules Serv. 12e.231, Case 8; Bowles v.

Ohse (D.Neb. 1945) 4 F.R.D. 403, 9 Fed.Rules Serv. 12e.231, Case 1;

Klages v. Cohen (E.D.N.Y. 1945) 9 Fed.Rules Serv. 8a.25, Case 4;

Bowles v. Lawrence (D.Mass. 1945) 8 Fed.Rules Serv. 12e.231, Case

19; McKinney Tool & Mfg. Co. v. Hoyt (N.D.Ohio 1945) 9 Fed.Rules

Serv. 12e.235, Case 1; Bowles v. Jack (D.Minn. 1945) 5 F.R.D. 1, 9

Fed.Rules Serv. 12e.244, Case 9. And it has been urged from the

bench that the phrase be stricken. Poole v. White (N.D.W.Va. 1941).

5 Fed.Rules Serv. 12e.231, Case 4, 2 F.R.D. 40. See also Bowles v.

Gabel (W.D.Mo. 1946) 9 Fed.Rules Serv. 12e.244, Case 10 ("The

courts have never favored that portion of the rules which undertook

to justify a motion of this kind for the purpose of aiding counsel

in preparing his case for trial.").

Subdivision (f). This amendment affords a specific method of

raising the insufficiency of a defense, a matter which has troubled

some courts, although attack has been permitted in one way or

another. See Dysart v. Remington-Rand, Inc. (D.Conn. 1939) 31

F.Supp. 296; Eastman Kodak Co. v. McAuley (S.D.N.Y. 1941) 4

Fed.Rules Serv. 12f.21, Case 8, 2 F.R.D. 21; Schenley Distillers

Corp. v. Renken (E.D.S.C. 1940) 34 F.Supp. 678; Yale Transport

Corp. v. Yellow Truck & Coach Mfg. Co. (S.D.N.Y. 1944) 3 F.R.D.

440; United States v. Turner Milk Co. (N.D.Ill. 1941) 4 Fed.Rules

Serv. 12b.51, Case 3, 1 F.R.D. 643; Teiger v. Stephan Oderwald,

Inc. (S.D.N.Y. 1940) 31 F.Supp. 626; Teplitsky v. Pennsylvania R.

Co. (N.D.Ill. 1941) 38 F.Supp. 535; Gallagher v. Carroll (E.D.N.Y.

1939) 27 F.Supp. 568; United States v. Palmer (S.D.N.Y. 1939) 28

F.Supp. 936. And see Indemnity Ins. Co. of North America v. Pan

American Airways, Inc. (S.D.N.Y. 1944) 58 F.Supp. 338; Commentary,

Modes of Attacking Insufficient Defenses in the Answer (1939) 1

Fed.Rules Serv. 669 (1940) 2 Fed.Rules Serv. 640.

Subdivision (g). The change in title conforms with the companion

provision in subdivision (h).

The alteration of the "except" clause requires that other than

provided in subdivision (h) a party who resorts to a motion to

raise defenses specified in the rule, must include in one motion

all that are then available to him. Under the original rule

defenses which could be raised by motion were divided into two

groups which could be the subjects of two successive motions.

Subdivision (h). The addition of the phrase relating to

indispensable parties is one of necessity.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This amendment conforms to the amendment of Rule 4(e). See also

the Advisory Committee's Note to amended Rule 4(b).

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

Subdivision (b)(7). The terminology of this subdivision is

changed to accord with the amendment of Rule 19. See the Advisory

Committee's Note to Rule 19, as amended, especially the third

paragraph therein before the caption "Subdivision (c)."

Subdivision (g). Subdivision (g) has forbidden a defendant who

makes a preanswer motion under this rule from making a further

motion presenting any defense or objection which was available to

him at the time he made the first motion and which he could have

included, but did not in fact include therein. Thus if the

defendant moves before answer to dismiss the complaint for failure

to state a claim, he is barred from making a further motion

presenting the defense of improper venue, if that defense was

available to him when he made his original motion. Amended

subdivision (g) is to the same effect. This required consolidation

of defenses and objections in a Rule 12 motion is salutary in that

it works against piecemeal consideration of a case. For exceptions

to the requirement of consolidation, see the last clause of

subdivision (g), referring to new subdivision (h)(2).

Subdivision (h). The question has arisen whether an omitted

defense which cannot be made the basis of a second motion may

nevertheless be pleaded in the answer. Subdivision (h) called for

waiver of "* * * defenses and objections which he [defendant] does

not present * * * by motion * * * or, if he has made no motion, in

his answer * * *." If the clause "if he has made no motion," was

read literally, it seemed that the omitted defense was waived and

could not be pleaded in the answer. On the other hand, the clause

might be read as adding nothing of substance to the preceding

words; in that event it appeared that a defense was not waived by

reason of being omitted from the motion and might be set up in the

answer. The decisions were divided. Favoring waiver, see Keefe v.

Derounian, 6 F.R.D. 11 (N.D.Ill. 1946); Elbinger v. Precision Metal

Workers Corp., 18 F.R.D. 467 (E.D.Wis. 1956); see also Rensing v.

Turner Aviation Corp., 166 F.Supp. 790 (N.D.Ill. 1958); P.

Beiersdorf & Co. v. Duke Laboratories, Inc., 10 F.R.D. 282

(S.D.N.Y. 1950); Neset v. Christensen, 92 F.Supp. 78 (E.D.N.Y.

1950). Opposing waiver, see Phillips v. Baker, 121 F.2d 752 (9th

Cir. 1941); Crum v. Graham, 32 F.R.D. 173 (D.Mont. 1963)

(regretfully following the Phillips case); see also Birnbaum v.

Birrell, 9 F.R.D. 72 (S.D.N.Y. 1948); Johnson v. Joseph Schlitz

Brewing Co., 33 F.Supp. 176 (E.D.Tenn. 1940); cf. Carter v.

American Bus Lines, Inc., 22 F.R.D. 323 (D.Neb. 1958).

Amended subdivision (h)(1)(A) eliminates the ambiguity and states

that certain specified defenses which were available to a party

when he made a preanswer motion, but which he omitted from the

motion, are waived. The specified defenses are lack of jurisdiction

over the person, improper venue, insufficiency of process, and

insufficiency of service of process (see Rule 12(b)(2)-(5)). A

party who by motion invites the court to pass upon a threshold

defense should bring forward all the specified defenses he then has

and thus allow the court to do a reasonably complete job. The

waiver reinforces the policy of subdivision (g) forbidding

successive motions.

By amended subdivision (h)(1)(B), the specified defenses, even if

not waived by the operation of (A), are waived by the failure to

raise them by a motion under Rule 12 or in the responsive pleading

or any amendment thereof to which the party is entitled as a matter

of course. The specified defenses are of such a character that they

should not be delayed and brought up for the first time by means of

an application to the court to amend the responsive pleading.

Since the language of the subdivisions is made clear, the party

is put on fair notice of the effect of his actions and omissions

and can guard himself against unintended waiver. It is to be noted

that while the defenses specified in subdivision (h)(1) are subject

to waiver as there provided, the more substantial defenses of

failure to state a claim upon which relief can be granted, failure

to join a party indispensable under Rule 19, and failure to state a

legal defense to a claim (see Rule 12(b)(6), (7), (f)), as well as

the defense of lack of jurisdiction over the subject matter (see

Rule 12(b)(1)), are expressly preserved against waiver by amended

subdivision (h)(2) and (3).

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Subdivision (a) is divided into paragraphs for greater clarity,

and paragraph (1)(B) is added to reflect amendments to Rule 4.

Consistent with Rule 4(d)(3), a defendant that timely waives

service is allowed 60 days from the date the request was mailed in

which to respond to the complaint, with an additional 30 days

afforded if the request was sent out of the country. Service is

timely waived if the waiver is returned within the time specified

in the request (30 days after the request was mailed, or 60 days if

mailed out of the country) and before being formally served with

process. Sometimes a plaintiff may attempt to serve a defendant

with process while also sending the defendant a request for waiver

of service; if the defendant executes the waiver of service within

the time specified and before being served with process, it should

have the longer time to respond afforded by waiving service.

The date of sending the request is to be inserted by the

plaintiff on the face of the request for waiver and on the waiver

itself. This date is used to measure the return day for the waiver

form, so that the plaintiff can know on a day certain whether

formal service of process will be necessary; it is also a useful

date to measure the time for answer when service is waived. The

defendant who returns the waiver is given additional time for

answer in order to assure that it loses nothing by waiving service

of process.

COMMITTEE NOTES ON RULES - 2000 AMENDMENT

Rule 12(a)(3)(B) is added to complement the addition of Rule

4(i)(2)(B). The purposes that underlie the requirement that service

be made on the United States in an action that asserts individual

liability of a United States officer or employee for acts occurring

in connection with the performance of duties on behalf of the

United States also require that the time to answer be extended to

60 days. Time is needed for the United States to determine whether

to provide representation to the defendant officer or employee. If

the United States provides representation, the need for an extended

answer period is the same as in actions against the United States,

a United States agency, or a United States officer sued in an

official capacity.

An action against a former officer or employee of the United

States is covered by subparagraph (3)(B) in the same way as an

action against a present officer or employee. Termination of the

relationship between the individual defendant and the United States

does not reduce the need for additional time to answer.

GAP Report. No changes are recommended for Rule 12 as published.

-End-

-CITE-

28 USC APPENDIX Rule 13 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 13. Counterclaim and Cross-Claim

-STATUTE-

(a) Compulsory Counterclaims. A pleading shall state as a

counterclaim any claim which at the time of serving the pleading

the pleader has against any opposing party, if it arises out of the

transaction or occurrence that is the subject matter of the

opposing party's claim and does not require for its adjudication

the presence of third parties of whom the court cannot acquire

jurisdiction. But the pleader need not state the claim if (1) at

the time the action was commenced the claim was the subject of

another pending action, or (2) the opposing party brought suit upon

the claim by attachment or other process by which the court did not

acquire jurisdiction to render a personal judgment on that claim,

and the pleader is not stating any counterclaim under this Rule 13.

(b) Permissive Counterclaims. A pleading may state as a

counterclaim any claim against an opposing party not arising out of

the transaction or occurrence that is the subject matter of the

opposing party's claim.

(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or

may not diminish or defeat the recovery sought by the opposing

party. It may claim relief exceeding in amount or different in kind

from that sought in the pleading of the opposing party.

(d) Counterclaim Against the United States. These rules shall not

be construed to enlarge beyond the limits now fixed by law the

right to assert counterclaims or to claim credits against the

United States or an officer or agency thereof.

(e) Counterclaim Maturing or Acquired After Pleading. A claim

which either matured or was acquired by the pleader after serving a

pleading may, with the permission of the court, be presented as a

counterclaim by supplemental pleading.

(f) Omitted Counterclaim. When a pleader fails to set up a

counterclaim through oversight, inadvertence, or excusable neglect,

or when justice requires, the pleader may by leave of court set up

the counterclaim by amendment.

(g) Cross-Claim Against Co-Party. A pleading may state as a

cross-claim any claim by one party against a co-party arising out

of the transaction or occurrence that is the subject matter either

of the original action or of a counterclaim therein or relating to

any property that is the subject matter of the original action.

Such cross-claim may include a claim that the party against whom it

is asserted is or may be liable to the cross-claimant for all or

part of a claim asserted in the action against the cross-claimant.

(h) Joinder of Additional Parties. Persons other than those made

parties to the original action may be made parties to a

counterclaim or cross-claim in accordance with the provisions of

Rules 19 and 20.

(i) Separate Trials; Separate Judgments. If the court orders

separate trials as provided in Rule 42(b), judgment on a

counterclaim or cross-claim may be rendered in accordance with the

terms of Rule 54(b) when the court has jurisdiction so to do, even

if the claims of the opposing party have been dismissed or

otherwise disposed of.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

1. This is substantially [former] Equity Rule 30 (Answer -

Contents - Counterclaim), broadened to include legal as well as

equitable counterclaims.

2. Compare the English practice, English Rules Under the

Judicature Act (The Annual Practice, 1937) O. 19, r.r. 2 and 3, and

O. 21, r.r. 10 - 17; Beddall v. Maitland, L.R. 17 Ch.Div. 174, 181,

182 (1881).

3. Certain States have also adopted almost unrestricted

provisions concerning both the subject matter of and the parties to

a counterclaim. This seems to be the modern tendency. Ark.Civ.Code

(Crawford, 1934) Secs. 117 (as amended) and 118; N.J.Comp.Stat. (2

Cum.Supp. 1911-1924), N.Y.C.P.A. (1937) Secs. 262, 266, 267 (all as

amended, Laws of 1936, ch. 324), 268, 269, and 271; Wis.Stat.

(1935) Sec. 263.14 (1)(c).

4. Most codes do not expressly provide for a counterclaim in the

reply. Clark, Code Pleading (1928), p. 486. Ky.Codes (Carroll,

1932) Civ.Pract. Sec. 98 does provide, however, for such

counterclaim.

5. The provisions of this rule respecting counterclaims are

subject to Rule 82 (Jurisdiction and Venue Unaffected). For a

discussion of Federal jurisdiction and venue in regard to

counterclaims and cross-claims, see Shulman and Jaegerman, Some

Jurisdictional Limitations in Federal Procedure (1936), 45 Yale

L.J. 393, 410 et seq.

6. This rule does not affect such statutes of the United States

as U.S.C., Title 28, Sec. 41(1) [now 1332, 1345, 1359] (United

States as plaintiff; civil suits at common law and in equity),

relating to assigned claims in actions based on diversity of

citizenship.

7. If the action proceeds to judgment without the interposition

of a counterclaim as required by subdivision (a) of this rule, the

counterclaim is barred. See American Mills Co. v. American Surety

Co., 260 U.S. 360 (1922); Marconi Wireless Telegraph Co. v.

National Electric Signalling Co., 206 Fed. 295 (E.D.N.Y., 1913);

Hopkins, Federal Equity Rules (8th ed., 1933), p. 213; Simkins,

Federal Practice (1934), p. 663

8. For allowance of credits against the United States see U.S.C.,

Title 26, Secs. 1672-1673 [see 7442] (Suits for refunds of internal

revenue taxes - limitations); U.S.C., Title 28, Secs. 774 [now

2406] (Suits by United States against individuals; credits),

[former] 775 (Suits under postal laws; credits); U.S.C., Title 31,

Sec. 227 [now 3728] (Offsets against judgments and claims against

United States).

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Subdivision (a). The use of the word "filing" was inadvertent.

The word "serving" conforms with subdivision (e) and with usage

generally throughout the rules.

The removal of the phrase "not the subject of a pending action"

and the addition of the new clause at the end of the subdivision is

designed to eliminate the ambiguity noted in Prudential Insurance

Co. of America v. Saxe (App.D.C. 1943) 134 F.(2d) 16, 33-34, cert.

den. (1943) 319 U.S. 745. The rewording of the subdivision in this

respect insures against an undesirable possibility presented under

the original rule whereby a party having a claim which would be the

subject of a compulsory counterclaim could avoid stating it as such

by bringing an independent action in another court after the

commencement of the federal action but before serving his pleading

in the federal action.

Subdivision (g). The amendment is to care for a situation such as

where a second mortgagee is made defendant in a foreclosure

proceeding and wishes to file a cross-complaint against the

mortgagor in order to secure a personal judgment for the

indebtedness and foreclose his lien. A claim of this sort by the

second mortgagee may not necessarily arise out of the transaction

or occurrence that is the subject matter of the original action

under the terms of Rule 13(g).

Subdivision (h). The change clarifies the interdependence of

Rules 13(i) and 54(b).

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

When a defendant, if he desires to defend his interest in

property, is obliged to come in and litigate in a court to whose

jurisdiction he could not ordinarily be subjected, fairness

suggests that he should not be required to assert counterclaims,

but should rather be permitted to do so at his election. If,

however, he does elect to assert a counterclaim, it seems fair to

require him to assert any other which is compulsory within the

meaning of Rule 13(a). Clause (2), added by amendment to Rule

13(a), carries out this idea. It will apply to various cases

described in Rule 4(e), as amended, where service is effected

through attachment or other process by which the court does not

acquire jurisdiction to render a personal judgment against the

defendant. Clause (2) will also apply to actions commenced in State

courts jurisdictionally grounded on attachment or the like, and

removed to the Federal courts.

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

Rule 13(h), dealing with the joinder of additional parties to a

counterclaim or cross-claim, has partaken of some of the textual

difficulties of Rule 19 on necessary joinder of parties. See

Advisory Committee's Note to Rule 19, as amended; cf. 3 Moore's

Federal Practice, Par. 13.39 (2d ed. 1963), and Supp. thereto; 1A

Barron & Holtzoff, Federal Practice and Procedure Sec. 399 (Wright

ed. 1960). Rule 13(h) has also been inadequate in failing to call

attention to the fact that a party pleading a counterclaim or

cross-claim may join additional persons when the conditions for

permissive joinder of parties under Rule 20 are satisfied.

The amendment of Rule 13(h) supplies the latter omission by

expressly referring to Rule 20, as amended, and also incorporates

by direct reference the revised criteria and procedures of Rule 19,

as amended. Hereafter, for the purpose of determining who must or

may be joined as additional parties to a counterclaim or

cross-claim, the party pleading the claim is to be regarded as a

plaintiff and the additional parties as plaintiffs or defendants as

the case may be, and amended Rules 19 and 20 are to be applied in

the usual fashion. See also Rules 13(a) (compulsory counterclaims)

and 22 (interpleader).

The amendment of Rule 13(h), like the amendment of Rule 19, does

not attempt to regulate Federal jurisdiction or venue. See Rule 82.

It should be noted, however, that in some situations the decisional

law has recognized "ancillary" Federal jurisdiction over

counterclaims and cross-claims and "ancillary" venue as to parties

to these claims.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 14 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 14. Third-Party Practice

-STATUTE-

(a) When Defendant May Bring in Third Party. At any time after

commencement of the action a defending party, as a third-party

plaintiff, may cause a summons and complaint to be served upon a

person not a party to the action who is or may be liable to the

third-party plaintiff for all or part of the plaintiff's claim

against the third-party plaintiff. The third-party plaintiff need

not obtain leave to make the service if the third-party plaintiff

files the third-party complaint not later than 10 days after

serving the original answer. Otherwise the third-party plaintiff

must obtain leave on motion upon notice to all parties to the

action. The person served with the summons and third-party

complaint, hereinafter called the third-party defendant, shall make

any defenses to the third-party plaintiff's claim as provided in

Rule 12 and any counterclaims against the third-party plaintiff and

cross-claims against other third-party defendants as provided in

Rule 13. The third-party defendant may assert against the plaintiff

any defenses which the third-party plaintiff has to the plaintiff's

claim. The third-party defendant may also assert any claim against

the plaintiff arising out of the transaction or occurrence that is

the subject matter of the plaintiff's claim against the third-party

plaintiff. The plaintiff may assert any claim against the

third-party defendant arising out of the transaction or occurrence

that is the subject matter of the plaintiff's claim against the

third-party plaintiff, and the third-party defendant thereupon

shall assert any defenses as provided in Rule 12 and any

counterclaims and cross-claims as provided in Rule 13. Any party

may move to strike the third-party claim, or for its severance or

separate trial. A third-party defendant may proceed under this rule

against any person not a party to the action who is or may be

liable to the third-party defendant for all or part of the claim

made in the action against the third-party defendant. The

third-party complaint, if within the admiralty and maritime

jurisdiction, may be in rem against a vessel, cargo, or other

property subject to admiralty or maritime process in rem, in which

case references in this rule to the summons include the warrant of

arrest, and references to the third-party plaintiff or defendant

include, where appropriate, a person who asserts a right under

Supplemental Rule C(6)(b)(i) in the property arrested.

(b) When Plaintiff May Bring in Third Party. When a counterclaim

is asserted against a plaintiff, the plaintiff may cause a third

party to be brought in under circumstances which under this rule

would entitle a defendant to do so.

(c) Admiralty and Maritime Claims. When a plaintiff asserts an

admiralty or maritime claim within the meaning of Rule 9(h), the

defendant or person who asserts a right under Supplemental Rule

C(6)(b)(i), as a third-party plaintiff, may bring in a third-party

defendant who may be wholly or partly liable, either to the

plaintiff or to the third-party plaintiff, by way of remedy over,

contribution, or otherwise on account of the same transaction,

occurrence, or series of transactions or occurrences. In such a

case the third-party plaintiff may also demand judgment against the

third-party defendant in favor of the plaintiff, in which event the

third-party defendant shall make any defenses to the claim of the

plaintiff as well as to that of the third-party plaintiff in the

manner provided in Rule 12 and the action shall proceed as if the

plaintiff had commenced it against the third-party defendant as

well as the third-party plaintiff.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Third-party impleader is in some aspects a modern innovation in

law and equity although well known in admiralty. Because of its

many advantages a liberal procedure with respect to it has

developed in England, in the Federal admiralty courts, and in some

American State jurisdictions. See English Rules Under the

Judicature Act (The Annual Practice, 1937) O. 16A, r.r. 1-13;

United States Supreme Court Admiralty Rules (1920), Rule 56 (Right

to Bring in Party Jointly Liable); Pa.Stat.Ann. (Purdon, 1936)

Title 12, Sec. 141; Wis.Stat. (1935) Secs. 260.19, 260.20;

N.Y.C.P.A. (1937) Secs. 193 (2), 211(a). Compare La.Code Pract.

(Dart, 1932) Secs. 378-388. For the practice in Texas as developed

by judicial decision, see Lottman v. Cuilla, 288 S.W. 123, 126

(Tex., 1926). For a treatment of this subject see Gregory,

Legislative Loss Distribution in Negligence Actions (1936); Shulman

and Jaegerman, Some Jurisdictional Limitations on Federal Procedure

(1936), 45 Yale L.J. 393, 417, et seq.

Third-party impleader under the conformity act has been applied

in actions at law in the Federal courts. Lowry and Co., Inc., v.

National City Bank of New York, 28 F.(2d) 895 (S.D.N.Y., 1928);

Yellow Cab Co. of Philadelphia v. Rodgers, 61 F.(2d) 729 (C.C.A.3d,

1932).

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

The provisions in Rule 14(a) which relate to the impleading of a

third party who is or may be liable to the plaintiff have been

deleted by the proposed amendment. It has been held that under Rule

14(a) the plaintiff need not amend his complaint to state a claim

against such third party if he does not wish to do so. Satink v.

Holland Township (D.N.J. 1940) 31 F.Supp. 229, noted (1940) 88

U.Pa.L.Rev. 751; Connelly v. Bender (E.D.Mich. 1941) 36 F.Supp.

368; Whitmire v. Partin v. Milton (E.D.Tenn. 1941) 5 Fed.Rules

Serv. 14a.513, Case 2; Crim v. Lumbermen's Mutual Casualty Co.

(D.D.C. 1939) 26 F.Supp. 715; Carbola Chemical Co., Inc. v. Trundle

(S.D.N.Y. 1943) 7 Fed.Rules Serv. 14a.224, Case 1; Roadway Express,

Inc. v. Automobile Ins. Co. of Hartford, Conn. v. Providence

Washington Ins. Co. (N.D.Ohio 1945) 8 Fed.Rules Serv. 14a.513, Case

3. In Delano v. Ives (E.D.Pa. 1941) 40 F.Supp. 672, the court said:

". . . the weight of authority is to the effect that a defendant

cannot compel the plaintiff, who has sued him, to sue also a third

party whom he does not wish to sue, by tendering in a third party

complaint the third party as an additional defendant directly

liable to the plaintiff." Thus impleader here amounts to no more

than a mere offer of a party to the plaintiff, and if he rejects

it, the attempt is a time-consuming futility. See Satink v. Holland

Township, supra; Malkin v. Arundel Corp. (D.Md. 1941) 36 F.Supp.

948; also Koenigsberger, Suggestions for Changes in the Federal

Rules of Civil Procedure, (1941) 4 Fed.Rules Serv. 1010. But cf.

Atlantic Coast Line R. Co. v. United States Fidelity & Guaranty Co.

(M.D.Ga. 1943) 52 F.Supp. 177. Moreover, in any case where the

plaintiff could not have joined the third party originally because

of jurisdictional limitations such as lack of diversity of

citizenship, the majority view is that any attempt by the plaintiff

to amend his complaint and assert a claim against the impleaded

third party would be unavailing. Hoskie v. Prudential Ins. Co. of

America v. Lorrac Real Estate Corp. (E.D.N.Y. 1941) 39 F.Supp. 305;

Johnson v. G. J. Sherrard Co. v. New England Telephone & Telegraph

Co. (D.Mass. 1941) 5 Fed.Rules Serv. 14a.511, Case 1, 2 F.R.D. 164;

Thompson v. Cranston (W.D.N.Y. 1942) 6 Fed.Rules Serv. 14a.511,

Case 1, 2 F.R.D. 270, aff'd (C.C.A.2d, 1942) 132 F.(2d) 631, cert.

den. (1943) 319 U.S. 741; Friend v. Middle Atlantic Transportation

Co. (C.C.A.2d, 1946) 153 F.(2d) 778, cert. den. (1946) 66 S.Ct.

1370; Herrington v. Jones (E.D.La. 1941) 5 Fed.Rules Serv. 14a.511,

Case 2, 2 F.R.D. 108; Banks v. Employers' Liability Assurance Corp.

v. Central Surety & Ins. Corp. (W.D.Mo. 1943) 7 Fed.Rules Serv.

14a.11, Case 2; Saunders v. Baltimore & Ohio R. Co. (S.D.W.Va.

1945) 9 Fed.Rules Serv. 14a.62, Case 2; Hull v. United States

Rubber Co. v. Johnson Larsen & Co. (E.D.Mich. 1945) 9 Fed.Rules

Serv. 14a.62, Case 3. See also concurring opinion of Circuit Judge

Minton in People of State of Illinois for use of Trust Co. of

Chicago v. Maryland Casualty Co. (C.C.A.7th, 1942) 132 F.(2d) 850,

853. Contra: Sklar v. Hayes v. Singer (E.D.Pa. 1941) 4 Fed.Rules

Serv. 14a.511, Case 2, 1 F.R.D. 594. Discussion of the problem will

be found in Commentary, Amendment of Plaintiff's Pleading to Assert

Claim Against Third-Party Defendant (1942) 5 Fed.Rules Serv. 811;

Commentary, Federal Jurisdiction in Third-Party Practice (1943) 6

Fed.Rules Serv. 766; Holtzoff, Some Problems Under Federal

Third-Party Practice (1941) 3 La.L.Rev. 408, 419-420; 1. Moore's

Federal Practice (1938) Cum.Supplement Sec. 14.08. For these

reasons therefore, the words "or to the plaintiff" in the first

sentence of subdivision (a) have been removed by the amendment; and

in conformance therewith the words "the plaintiff" in the second

sentence of the subdivision, and the words "or to the third-party

plaintiff" in the concluding sentence thereof have likewise been

eliminated.

The third sentence of Rule 14(a) has been expanded to clarify the

right of the third-party defendant to assert any defenses which the

third-party plaintiff may have to the plaintiff's claim. This

protects the impleaded third-party defendant where the third-party

plaintiff fails or neglects to assert a proper defense to the

plaintiff's action. A new sentence has also been inserted giving

the third-party defendant the right to assert directly against the

original 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. This permits all claims arising

out of the same transaction or occurrence to be heard and

determined in the same action. See Atlantic Coast Line R. Co. v.

United States Fidelity & Guaranty Co. (M.D.Ga. 1943) 52 F.Supp.

177. Accordingly, the next to the last sentence of subdivision (a)

has also been revised to make clear that the plaintiff may, if he

desires, assert directly against the third-party defendant either

by amendment or by a new pleading any claim he may have against him

arising out of the transaction or occurrence that is the subject

matter of the plaintiff's claim against the third-party plaintiff.

In such a case, the third-party defendant then is entitled to

assert the defenses, counterclaims and cross-claims provided in

Rules 12 and 13.

The sentence reading "The third-party defendant is bound by the

adjudication of the third-party plaintiff's liability to the

plaintiff, as well as of his own to the plaintiff, or to the

third-party plaintiff" has been stricken from Rule 14(a), not to

change the law, but because the sentence states a rule of

substantive law which is not within the scope of a procedural rule.

It is not the purpose of the rules to state the effect of a

judgment.

The elimination of the words "the third-party plaintiff, or any

other party" from the second sentence of Rule 14(a), together with

the insertion of the new phrases therein, are not changes of

substance but are merely for the purpose of clarification.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

Under the amendment of the initial sentences of the subdivision,

a defendant as a third-party plaintiff may freely and without leave

of court bring in a third-party defendant if he files the

third-party complaint not later than 10 days after he serves his

original answer. When the impleader comes so early in the case,

there is little value in requiring a preliminary ruling by the

court on the propriety of the impleader.

After the third-party defendant is brought in, the court has

discretion to strike the third-party claim if it is obviously

unmeritorious and can only delay or prejudice the disposition of

the plaintiff's claim, or to sever the third-party claim or accord

it separate trial if confusion or prejudice would otherwise result.

This discretion, applicable not merely to the cases covered by the

amendment where the third-party defendant is brought in without

leave, but to all impleaders under the rule, is emphasized in the

next-to-last sentence of the subdivision, added by amendment.

In dispensing with leave of court for an impleader filed not

later than 10 days after serving the answer, but retaining the

leave requirement for impleaders sought to be effected thereafter,

the amended subdivision takes a moderate position on the lines

urged by some commentators, see Note, 43 Minn.L.Rev. 115 (1958);

cf. Pa.R.Civ.P. 2252-53 (60 days after service on the defendant);

Minn.R.Civ.P. 14.01 (45 days). Other commentators would dispense

with the requirement of leave regardless of the time when impleader

is effected, and would rely on subsequent action by the court to

dismiss the impleader if it would unduly delay or complicate the

litigation or would be otherwise objectionable. See 1A Barron &

Holtzoff, Federal Practice & Procedure 649-50 (Wright ed. 1960);

Comment, 58 Colum.L.Rev. 532, 546 (1958); cf. N.Y.Civ.Prac. Act

Sec. 193-a; Me.R.Civ.P. 14. The amended subdivision preserves the

value of a preliminary screening, through the leave procedure, of

impleaders attempted after the 10-day period.

The amendment applies also when an impleader is initiated by a

third-party defendant against a person who may be liable to him, as

provided in the last sentence of the subdivision.

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

Rule 14 was modeled on Admiralty Rule 56. An important feature of

Admiralty Rule 56 was that it allowed impleader not only of a

person who might be liable to the defendant by way of remedy over,

but also of any person who might be liable to the plaintiff. The

importance of this provision was that the defendant was entitled to

insist that the plaintiff proceed to judgment against the

third-party defendant. In certain cases this was a valuable

implementation of a substantive right. For example, in a case of

ship collision where a finding of mutual fault is possible, one

ship- owner, if sued alone, faces the prospect of an absolute

judgment for the full amount of the damage suffered by an innocent

third party; but if he can implead the owner of the other vessel,

and if mutual fault is found, the judgment against the original

defendant will be in the first instance only for a moiety of the

damages; liability for the remainder will be conditioned on the

plaintiff's inability to collect from the third-party defendant.

This feature was originally incorporated in Rule 14, but was

eliminated by the amendment of 1946, so that under the amended rule

a third party could not be impleaded on the basis that he might be

liable to the plaintiff. One of the reasons for the amendment was

that the Civil Rule, unlike the Admiralty Rule, did not require the

plaintiff to go to judgment against the third-party defendant.

Another reason was that where jurisdiction depended on diversity of

citizenship the impleader of an adversary having the same

citizenship as the plaintiff was not considered possible.

Retention of the admiralty practice in those cases that will be

counterparts of a suit in admiralty is clearly desirable.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

COMMITTEE NOTES ON RULES - 2000 AMENDMENT

Subdivisions (a) and (c) are amended to reflect revisions in

Supplemental Rule C(6).

GAP Report. Rule B(1)(a) was modified by moving "in an in

personam action" out of paragraph (a) and into the first line of

subdivision (1). This change makes it clear that all paragraphs of

subdivision (1) apply when attachment is sought in an in personam

action. Rule B(1)(d) was modified by changing the requirement that

the clerk deliver the summons and process to the person or

organization authorized to serve it. The new form requires only

that the summons and process be delivered, not that the clerk

effect the delivery. This change conforms to present practice in

some districts and will facilitate rapid service. It matches the

spirit of Civil Rule 4(b), which directs the clerk to issue the

summons "to the plaintiff for service on the defendant." A parallel

change is made in Rule C(3)(b).

-End-

-CITE-

28 USC APPENDIX Rule 15 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 15. Amended and Supplemental Pleadings

-STATUTE-

(a) Amendments. A party may amend the party's pleading once as a

matter of course at any time before a responsive pleading is served

or, if the pleading is one to which no responsive pleading is

permitted and the action has not been placed upon the trial

calendar, the party may so amend it at any time within 20 days

after it is served. Otherwise a party may amend the party's

pleading only by leave of court or by written consent of the

adverse party; and leave shall be freely given when justice so

requires. A party shall plead in response to an amended pleading

within the time remaining for response to the original pleading or

within 10 days after service of the amended pleading, whichever

period may be the longer, unless the court otherwise orders.

(b) Amendments To Conform to the Evidence. When issues not raised

by the pleadings are tried by express or implied consent of the

parties, they shall be treated in all respects as if they had been

raised in the pleadings. Such amendment of the pleadings as may be

necessary to cause them to conform to the evidence and to raise

these issues may be made upon motion of any party at any time, even

after judgment; but failure so to amend does not affect the result

of the trial of these issues. If evidence is objected to at the

trial on the ground that it is not within the issues made by the

pleadings, the court may allow the pleadings to be amended and

shall do so freely when the presentation of the merits of the

action will be subserved thereby and the objecting party fails to

satisfy the court that the admission of such evidence would

prejudice the party in maintaining the party's action or defense

upon the merits. The court may grant a continuance to enable the

objecting party to meet such evidence.

(c) Relation Back of Amendments. An amendment of a pleading

relates back to the date of the original pleading when

(1) relation back is permitted by the law that provides the

statute of limitations applicable to the action, or

(2) the claim or defense asserted in the amended pleading arose

out of the conduct, transaction, or occurrence set forth or

attempted to be set forth in the original pleading, or

(3) the amendment changes the party or the naming of the party

against whom a claim is asserted if the foregoing provision (2)

is satisfied and, within the period provided by Rule 4(m) for

service of the summons and complaint, the party to be brought in

by amendment (A) has received such notice of the institution of

the action that the party will not be prejudiced in maintaining a

defense on the merits, and (B) knew or should have known that,

but for a mistake concerning the identity of the proper party,

the action would have been brought against the party.

The delivery or mailing of process to the United States

Attorney, or United States Attorney's designee, or the Attorney

General of the United States, or an agency or officer who would

have been a proper defendant if named, satisfies the requirement

of subparagraphs (A) and (B) of this paragraph (3) with respect

to the United States or any agency or officer thereof to be

brought into the action as a defendant.

(d) Supplemental Pleadings. Upon motion of a party the court may,

upon reasonable notice and upon such terms as are just, permit the

party to serve a supplemental pleading setting forth transactions

or occurrences or events which have happened since the date of the

pleading sought to be supplemented. Permission may be granted even

though the original pleading is defective in its statement of a

claim for relief or defense. If the court deems it advisable that

the adverse party plead to the supplemental pleading, it shall so

order, specifying the time therefor.

-SOURCE-

(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; Pub. L. 102-198, Sec. 11(a), Dec. 9, 1991, 105 Stat.

1626; Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

See generally for the present federal practice, [former] Equity

Rules 19 (Amendments Generally), 28 (Amendment of Bill as of

Course), 32 (Answer to Amended Bill), 34 (Supplemental Pleading),

and 35 (Bills of Revivor and Supplemental Bills - Form); U.S.C.,

Title 28, Secs. 399 [now 1653] (Amendments to show diverse

citizenship) and [former] 777 (Defects of Form; amendments). See

English Rules Under the Judicature Act (The Annual Practice, 1937)

O. 28, r.r. 1-13; O. 20, r. 4; O. 24, r.r. 1-3.

Note to Subdivision (a). The right to serve an amended pleading

once as of course is common. 4 Mont.Rev.Codes Ann. (1935) Sec.

9186; 1 Ore.Code Ann. (1930) Sec. 1-904; 1 S.C.Code (Michie, 1932)

Sec. 493; English Rules Under the Judicature Act (The Annual

Practice, 1937) O. 28, r. 2. Provision for amendment of pleading

before trial, by leave of court, is in almost every code. If there

is no statute the power of the court to grant leave is said to be

inherent. Clark, Code Pleading, (1928) pp. 498, 509.

Note to Subdivision (b). Compare [former] Equity Rule 19

(Amendments Generally) and code provisions which allow an amendment

"at any time in furtherance of justice," (e. g., Ark.Civ.Code

(Crawford, 1934) Sec. 155) and which allow an amendment of

pleadings to conform to the evidence, where the adverse party has

not been misled and prejudiced (e.g., N.M.Stat.Ann. (Courtright,

1929) Secs. 105-601, 105-602).

Note to Subdivision (c). "Relation back" is a well recognized

doctrine of recent and now more frequent application. Compare

Ala.Code Ann. (Michie, 1928) Sec. 9513; Ill.Rev.Stat. (1937) ch.

110, Sec. 170(2); 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec.

308-3(4). See U.S.C., Title 28, Sec. 399 [now 1653] (Amendments to

show diverse citizenship) for a provision for "relation back."

Note to Subdivision (d). This is an adaptation of Equity Rule 34

(Supplemental Pleading).

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

Rule 15(d) is intended to give the court broad discretion in

allowing a supplemental pleading. However, some cases, opposed by

other cases and criticized by the commentators, have taken the

rigid and formalistic view that where the original complaint fails

to state a claim upon which relief can be granted, leave to serve a

supplemental complaint must be denied. See Bonner v. Elizabeth

Arden, Inc., 177 F.2d 703 (2d Cir. 1949); Bowles v. Senderowitz, 65

F.Supp. 548 (E.D.Pa.), rev'd on other grounds, 158 F.2d 435 (3d

Cir. 1946), cert. denied, Senderowitz v. Fleming, 330 U.S. 848, 67

S.Ct. 1091, 91 L.Ed. 1292 (1947); cf. LaSalle Nat. Bank v. 222 East

Chestnut St. Corp., 267 F.2d 247 (7th Cir.), cert. denied, 361 U.S.

836, 80 S.Ct. 88, 4 L.Ed.2d 77 (1959). But see Camilla Cotton Oil

Co. v. Spencer Kellogg & Sons, 257 F.2d 162 (5th Cir. 1958); Genuth

v. National Biscuit Co., 81 F.Supp. 213 (S.D.N.Y. 1948), app.

dism., 177 F.2d 962 (2d Cir. 1949); 3 Moore's Federal Practice

¶ 15.01 [5] (Supp. 1960); 1A Barron & Holtzoff, Federal

Practice & Procedure 820-21 (Wright ed. 1960). Thus plaintiffs have

sometimes been needlessly remitted to the difficulties of

commencing a new action even though events occurring after the

commencement of the original action have made clear the right to

relief.

Under the amendment the court has discretion to permit a

supplemental pleading despite the fact that the original pleading

is defective. As in other situations where a supplemental pleading

is offered, the court is to determine in the light of the

particular circumstances whether filing should be permitted, and if

so, upon what terms. The amendment does not attempt to deal with

such questions as the relation of the statute of limitations to

supplemental pleadings, the operation of the doctrine of laches, or

the availability of other defenses. All these questions are for

decision in accordance with the principles applicable to

supplemental pleadings generally. Cf. Blau v. Lamb, 191 F.Supp. 906

(S.D.N.Y. 1961); Lendonsol Amusement Corp. v. B. & Q. Assoc., Inc.,

23 F.R.Serv. 15d. 3, Case 1 (D.Mass. 1957).

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

Rule 15(c) is amplified to state more clearly when an amendment

of a pleading changing the party against whom a claim is asserted

(including an amendment to correct a misnomer or misdescription of

a defendant) shall "relate back" to the date of the original

pleading.

The problem has arisen most acutely in certain actions by private

parties against officers or agencies of the United States. Thus an

individual denied social security benefits by the Secretary of

Health, Education, and Welfare may secure review of the decision by

bringing a civil action against that officer within sixty days. 42

U.S.C. Sec. 405(g) (Supp. III, 1962). In several recent cases the

claimants instituted timely action but mistakenly named as

defendant the United States, the Department of HEW, the "Federal

Security Administration" (a nonexistent agency), and a Secretary

who had retired from the office nineteen days before. Discovering

their mistakes, the claimants moved to amend their complaints to

name the proper defendant; by this time the statutory sixty-day

period had expired. The motions were denied on the ground that the

amendment "would amount to the commencement of a new proceeding and

would not relate back in time so as to avoid the statutory

provision * * * that suit be brought within sixty days * * *" Cohn

v. Federal Security Adm., 199 F.Supp. 884, 885 (W.D.N.Y. 1961); see

also Cunningham v. United States, 199 F.Supp. 541 (W.D.Mo. 1958);

Hall v. Department of HEW, 199 F.Supp. 833 (S.D.Tex. 1960);

Sandridge v. Folsom, Secretary of HEW, 200 F.Supp. 25 (M.D.Tenn.

1959). [The Secretary of Health, Education, and Welfare has

approved certain ameliorative regulations under 42 U.S.C. Sec.

405(g). See 29 Fed.Reg. 8209 (June 30, 1964); Jacoby, The Effect of

Recent Changes in the Law of "Nonstatutory" Judicial Review, 53

Geo.L.J. 19, 42-43 (1964); see also Simmons v. United States Dept.

HEW, 328 F.2d 86 (3d Cir. 1964).]

Analysis in terms of "new proceeding" is traceable to Davis v. L.

L. Cohen & Co., 268 U.S. 638 (1925), and Mellon v. Arkansas Land &

Lumber Co., 275 U.S. 460 (1928), but those cases antedate the

adoption of the Rules which import different criteria for

determining when an amendment is to "relate back". As lower courts

have continued to rely on the Davis and Mellon cases despite the

contrary intent of the Rules, clarification of Rule 15(c) is

considered advisable.

Relation back is intimately connected with the policy of the

statute of limitations. The policy of the statute limiting the time

for suit against the Secretary of HEW would not have been offended

by allowing relation back in the situations described above. For

the government was put on notice of the claim within the stated

period - in the particular instances, by means of the initial

delivery of process to a responsible government official (see Rule

4(d)(4) and (5). In these circumstances, characterization of the

amendment as a new proceeding is not responsive to the realty, but

is merely question-begging; and to deny relation back is to defeat

unjustly the claimant's opportunity to prove his case. See the full

discussion by Byse, Suing the "Wrong" Defendant in Judicial Review

of Federal Administrative Action: Proposals for Reform, 77

Harv.L.Rev. 40 (1963); see also Ill.Civ.P.Act Sec. 46(4).

Much the same question arises in other types of actions against

the government (see Byse, supra, at 45 n. 15). In actions between

private parties, the problem of relation back of amendments

changing defendants has generally been better handled by the

courts, but incorrect criteria have sometimes been applied, leading

sporadically to doubtful results. See 1A Barron & Holtzoff, Federal

Practice & Procedure Sec. 451 (Wright ed. 1960); 1 id. Sec. 186

(1960); 2 id. Sec. 543 (1961); 3 Moore's Federal Practice, par.

15.15 (Cum.Supp. 1962); Annot., Change in Party After Statute of

Limitations Has Run, 8 A.L.R.2d 6 (1949). Rule 15(c) has been

amplified to provide a general solution. An amendment changing the

party against whom a claim is asserted relates back if the

amendment satisfies the usual condition of Rule 15(c) of "arising

out of the conduct * * * set forth * * * in the original pleading,"

and if, within the applicable limitations period, the party brought

in by amendment, first, received such notice of the institution of

the action - the notice need not be formal - that he would not be

prejudiced in defending the action, and, second, knew or should

have known that the action would have been brought against him

initially had there not been a mistake concerning the identity of

the proper party. Revised Rule 15(c) goes on to provide

specifically in the government cases that the first and second

requirements are satisfied when the government has been notified in

the manner there described (see Rule 4(d)(4) and (5). As applied to

the government cases, revised Rule 15(c) further advances the

objectives of the 1961 amendment of Rule 25(d) (substitution of

public officers).

The relation back of amendments changing plaintiffs is not

expressly treated in revised Rule 15(c) since the problem is

generally easier. Again the chief consideration of policy is that

of the statute of limitations, and the attitude taken in revised

Rule 15(c) toward change of defendants extends by analogy to

amendments changing plaintiffs. Also relevant is the amendment of

Rule 17(a) (real party in interest). To avoid forfeitures of just

claims, revised Rule 17(a) would provide that no action shall be

dismissed on the ground that it is not prosecuted in the name of

the real party in interest until a reasonable time has been allowed

for correction of the defect in the manner there stated.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

The rule has been revised to prevent parties against whom claims

are made from taking unjust advantage of otherwise inconsequential

pleading errors to sustain a limitations defense.

Paragraph (c)(1). This provision is new. It is intended to make

it clear that the rule does not apply to preclude any relation back

that may be permitted under the applicable limitations law.

Generally, the applicable limitations law will be state law. If

federal jurisdiction is based on the citizenship of the parties,

the primary reference is the law of the state in which the district

court sits. Walker v. Armco Steel Corp., 446 U.S. 740 (1980). If

federal jurisdiction is based on a federal question, the reference

may be to the law of the state governing relations between the

parties. E.g., Board of Regents v. Tomanio, 446 U.S. 478 (1980). In

some circumstances, the controlling limitations law may be federal

law. E.g., West v. Conrail, Inc., 107 S.Ct. 1538 (1987). Cf.

Burlington Northern R. Co. v. Woods, 480 U.S. 1 (1987); Stewart

Organization v. Ricoh, 108 S.Ct. 2239 (1988). Whatever may be the

controlling body of limitations law, if that law affords a more

forgiving principle of relation back than the one provided in this

rule, it should be available to save the claim. Accord, Marshall v.

Mulrenin, 508 F.2d 39 (1st cir. 1974). If Schiavone v. Fortune, 106

S.Ct. 2379 (1986) implies the contrary, this paragraph is intended

to make a material change in the rule.

Paragraph (c)(3). This paragraph has been revised to change the

result in Schiavone v. Fortune, supra, with respect to the problem

of a misnamed defendant. An intended defendant who is notified of

an action within the period allowed by Rule 4(m) for service of a

summons and complaint may not under the revised rule defeat the

action on account of a defect in the pleading with respect to the

defendant's name, provided that the requirements of clauses (A) and

(B) have been met. If the notice requirement is met within the Rule

4(m) period, a complaint may be amended at any time to correct a

formal defect such as a misnomer or misidentification. On the basis

of the text of the former rule, the Court reached a result in

Schiavone v. Fortune that was inconsistent with the liberal

pleading practices secured by Rule 8. See Bauer, Schiavone: An

Un-Fortune-ate Illustration of the Supreme Court's Role as

Interpreter of the Federal Rules of Civil Procedure, 63 NOTRE DAME

L. REV. 720 (1988); Brussack, Outrageous Fortune: The Case for

Amending Rule 15(c) Again, 61 S. CAL. L. REV. 671 (1988); Lewis,

The Excessive History of Federal Rule 15(c) and Its Lessons for

Civil Rules Revision, 86 MICH. L. REV. 1507 (1987).

In allowing a name-correcting amendment within the time allowed

by Rule 4(m), this rule allows not only the 120 days specified in

that rule, but also any additional time resulting from any

extension ordered by the court pursuant to that rule, as may be

granted, for example, if the defendant is a fugitive from service

of the summons.

This revision, together with the revision of Rule 4(i) with

respect to the failure of a plaintiff in an action against the

United States to effect timely service on all the appropriate

officials, is intended to produce results contrary to those reached

in Gardner v. Gartman, 880 F.2d 797 (4th cir. 1989), Rys v. U.S.

Postal Service, 886 F.2d 443 (1st cir. 1989), Martin's Food &

Liquor, Inc. v. U.S. Dept. of Agriculture, 14 F.R.S.3d 86 (N.D.

Ill. 1988). But cf. Montgomery v. United States Postal Service, 867

F.2d 900 (5th cir. 1989), Warren v. Department of the Army, 867

F.2d 1156 (8th cir. 1989); Miles v. Department of the Army, 881

F.2d 777 (9th cir. 1989), Barsten v. Department of the Interior,

896 F.2d 422 (9th cir. 1990); Brown v. Georgia Dept. of Revenue,

881 F.2d 1018 (11th cir. 1989).

CONGRESSIONAL MODIFICATION OF PROPOSED 1991 AMENDMENT

Section 11(a) of Pub. L. 102-198 [set out as a note under section

2074 of this title] provided that Rule 15(c)(3) of the Federal

Rules of Civil Procedure as transmitted to Congress by the Supreme

Court to become effective on Dec. 1, 1991, is amended. See 1991

Amendment note below.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

The amendment conforms the cross reference to Rule 4 to the

revision of that rule.

AMENDMENT BY PUBLIC LAW

1991 - Subd. (c)(3). Pub. L. 102-198 substituted "Rule 4(j)" for

"Rule 4(m)".

-End-

-CITE-

28 USC APPENDIX Rule 16 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 16. Pretrial Conferences; Scheduling; Management

-STATUTE-

(a) Pretrial Conferences; Objectives. In any action, the court

may in its discretion direct the attorneys for the parties and any

unrepresented parties to appear before it for a conference or

conferences before trial for such purposes as

(1) expediting the disposition of the action;

(2) establishing early and continuing control so that the case

will not be protracted because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of the trial through more thorough

preparation, and;

(5) facilitating the settlement of the case.

(b) Scheduling and Planning. Except in categories of actions

exempted by district court rule as inappropriate, the district

judge, or a magistrate judge when authorized by district court

rule, shall, after receiving the report from the parties under Rule

26(f) or after consulting with the attorneys for the parties and

any unrepresented parties by a scheduling conference, telephone,

mail, or other suitable means, enter a scheduling order that limits

the time

(1) to join other parties and to amend the pleadings;

(2) to file motions; and

(3) to complete discovery.

The scheduling order also may include

(4) modifications of the times for disclosures under Rules

26(a) and 26(e)(1) and of the extent of discovery to be

permitted;

(5) the date or dates for conferences before trial, a final

pretrial conference, and trial; and

(6) any other matters appropriate in the circumstances of the

case.

The order shall issue as soon as practicable but in any event

within 90 days after the appearance of a defendant and within 120

days after the complaint has been served on a defendant. A schedule

shall not be modified except upon a showing of good cause and by

leave of the district judge or, when authorized by local rule, by a

magistrate judge.

(c) Subjects for Consideration at Pretrial Conferences. At any

conference under this rule consideration may be given, and the

court may take appropriate action, with respect to

(1) the formulation and simplification of the issues, including

the elimination of frivolous claims or defenses;

(2) the necessity or desirability of amendments to the

pleadings;

(3) the possibility of obtaining admissions of fact and of

documents which will avoid unnecessary proof, stipulations

regarding the authenticity of documents, and advance rulings from

the court on the admissibility of evidence;

(4) the avoidance of unnecessary proof and of cumulative

evidence, and limitations or restrictions on the use of testimony

under Rule 702 of the Federal Rules of Evidence;

(5) the appropriateness and timing of summary adjudication

under Rule 56;

(6) the control and scheduling of discovery, including orders

affecting disclosures and discovery pursuant to Rule 26 and Rules

29 through 37;

(7) the identification of witnesses and documents, the need and

schedule for filing and exchanging pretrial briefs, and the date

or dates for further conferences and for trial;

(8) the advisability of referring matters to a magistrate judge

or master;

(9) settlement and the use of special procedures to assist in

resolving the dispute when authorized by statute or local rule;

(10) the form and substance of the pretrial order;

(11) the disposition of pending motions;

(12) the need for adopting special procedures for managing

potentially difficult or protracted actions that may involve

complex issues, multiple parties, difficult legal questions, or

unusual proof problems;

(13) an order for a separate trial pursuant to Rule 42(b) with

respect to a claim, counterclaim, cross-claim, or third-party

claim, or with respect to any particular issue in the case;

(14) an order directing a party or parties to present evidence

early in the trial with respect to a manageable issue that could,

on the evidence, be the basis for a judgment as a matter of law

under Rule 50(a) or a judgment on partial findings under Rule

52(c);

(15) an order establishing a reasonable limit on the time

allowed for presenting evidence; and

(16) such other matters as may facilitate the just, speedy, and

inexpensive disposition of the action.

At least one of the attorneys for each party participating in any

conference before trial shall have authority to enter into

stipulations and to make admissions regarding all matters that the

participants may reasonably anticipate may be discussed. If

appropriate, the court may require that a party or its

representative be present or reasonably available by telephone in

order to consider possible settlement of the dispute.

(d) Final Pretrial Conference. Any final pretrial conference

shall be held as close to the time of trial as reasonable under the

circumstances. The participants at any such conference shall

formulate a plan for trial, including a program for facilitating

the admission of evidence. The conference shall be attended by at

least one of the attorneys who will conduct the trial for each of

the parties and by any unrepresented parties.

(e) Pretrial Orders. After any conference held pursuant to this

rule, an order shall be entered reciting the action taken. This

order shall control the subsequent course of the action unless

modified by a subsequent order. The order following a final

pretrial conference shall be modified only to prevent manifest

injustice.

(f) Sanctions. If a party or party's attorney fails to obey a

scheduling or pretrial order, or if no appearance is made on behalf

of a party at a scheduling or pretrial conference, or if a party or

party's attorney is substantially unprepared to participate in the

conference, or if a party or party's attorney fails to participate

in good faith, the judge, upon motion or the judge's own

initiative, may make such orders with regard thereto as are just,

and among others any of the orders provided in Rule 37(b)(2)(B),

(C), (D). In lieu of or in addition to any other sanction, the

judge shall require the party or the attorney representing the

party or both to pay the reasonable expenses incurred because of

any noncompliance with this rule, including attorney's fees, unless

the judge finds that the noncompliance was substantially justified

or that other circumstances make an award of expenses unjust.

-SOURCE-

(As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff.

Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

1. Similar rules of pre-trial procedure are now in force in

Boston, Cleveland, Detroit, and Los Angeles, and a rule

substantially like this one has been proposed for the urban centers

of New York state. For a discussion of the successful operation of

pre-trial procedure in relieving the congested condition of trial

calendars of the courts in such cities and for the proposed New

York plan, see A Proposal for Minimizing Calendar Delay in Jury

Cases (Dec. 1936 - published by The New York Law Society);

Pre-Trial Procedure and Administration, Third Annual Report of the

Judicial Council of the State of New York (1937), pp. 207-243;

Report of the Commission on the Administration of Justice in New

York State (1934), pp. (288)-(290). See also Pre-Trial Procedure in

the Wayne Circuit Court, Detroit, Michigan, Sixth Annual Report of

the Judicial Council of Michigan (1936), pp. 63-75; and Sunderland,

The Theory and Practice of Pre-Trial Procedure (Dec. 1937) 36

Mich.L.Rev. 215-226, 21 J.Am.Jud.Soc. 125. Compare the English

procedure known as the "summons for directions," English Rules

Under the Judicature Act (The Annual Practice, 1937) O. 38a; and a

similar procedure in New Jersey, N.J.Comp.Stat. (2 Cum.Supp.

1911-1924); N.J. Supreme Court Rules, 2 N.J.Misc.Rep. (1924) 1230,

Rules 94, 92, 93, 95 (the last three as amended 1933, 11

N.J.Misc.Rep. (1933) 955).

2. Compare the similar procedure under Rule 56(d) (Summary

Judgment - Case Not Fully Adjudicated on Motion). Rule 12(g)

(Consolidation of Motions), by requiring to some extent the

consolidation of motions dealing with matters preliminary to trial,

is a step in the same direction. In connection with clause (5) of

this rule, see Rules 53(b) (Masters; Reference) and 53(e)(3)

(Master's Report; In Jury Actions).

NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT

INTRODUCTION

Rule 16 has not been amended since the Federal Rules were

promulgated in 1938. In many respects, the rule has been a success.

For example, there is evidence that pretrial conferences may

improve the quality of justice rendered in the federal courts by

sharpening the preparation and presentation of cases, tending to

eliminate trial surprise, and improving, as well as facilitating,

the settlement process. See 6 Wright & Miller, Federal Practice and

Procedure: Civil Sec. 1522 (1971). However, in other respects

particularly with regard to case management, the rule has not

always been as helpful as it might have been. Thus there has been a

widespread feeling that amendment is necessary to encourage

pretrial management that meets the needs of modern litigation. See

Report of the National Commission for the Review of Antitrust Laws

and Procedures (1979).

Major criticism of Rule 16 has centered on the fact that its

application can result in over-regulation of some cases and

under-regulation of others. In simple, run-of-the-mill cases,

attorneys have found pretrial requirements burdensome. It is

claimed that over-administration leads to a series of mini-trials

that result in a waste of an attorney's time and needless expense

to a client. Pollack, Pretrial Procedures More Effectively Handled,

65 F.R.D. 475 (1974). This is especially likely to be true when

pretrial proceedings occur long before trial. At the other end of

the spectrum, the discretionary character of Rule 16 and its

orientation toward a single conference late in the pretrial process

has led to under-administration of complex or protracted cases.

Without judicial guidance beginning shortly after institution,

these cases often become mired in discovery.

Four sources of criticism of pretrial have been identified.

First, conferences often are seen as a mere exchange of legalistic

contentions without any real analysis of the particular case.

Second, the result frequently is nothing but a formal agreement on

minutiae. Third, the conferences are seen as unnecessary and

time-consuming in cases that will be settled before trial. Fourth,

the meetings can be ceremonial and ritualistic, having little

effect on the trial and being of minimal value, particularly when

the attorneys attending the sessions are not the ones who will try

the case or lack authority to enter into binding stipulations. See

generally McCargo v. Hedrick, 545 F.2d 393 (4th Cir. 1976);

Pollack, Pretrial Procedures More Effectively Handled, 65 F.R.D.

475 (1974); Rosenberg, The Pretrial Conference and Effective

Justice 45 (1964).

There also have been difficulties with the pretrial orders that

issue following Rule 16 conferences. When an order is entered far

in advance of trial, some issues may not be properly formulated.

Counsel naturally are cautious and often try to preserve as many

options as possible. If the judge who tries the case did not

conduct the conference, he could find it difficult to determine

exactly what was agreed to at the conference. But any insistence on

a detailed order may be too burdensome, depending on the nature or

posture of the case.

Given the significant changes in federal civil litigation since

1938 that are not reflected in Rule 16, it has been extensively

rewritten and expanded to meet the challenges of modern litigation.

Empirical studies reveal that when a trial judge intervenes

personally at an early stage to assume judicial control over a case

and to schedule dates for completion by the parties of the

principal pretrial steps, the case is disposed of by settlement or

trial more efficiently and with less cost and delay than when the

parties are left to their own devices. Flanders, Case Management

and Court Management in United States District Courts 17, Federal

Judicial Center (1977). Thus, the rule mandates a pretrial

scheduling order. However, although scheduling and pretrial

conferences are encouraged in appropriate cases, they are not

mandated.

DISCUSSION

Subdivision (a); Pretrial Conferences; Objectives. The amended

rule makes scheduling and case management an express goal of

pretrial procedure. This is done in Rule 16(a) by shifting the

emphasis away from a conference focused solely on the trial and

toward a process of judicial management that embraces the entire

pretrial phase, especially motions and discovery. In addition, the

amendment explicitly recognizes some of the objectives of pretrial

conferences and the powers that many courts already have assumed.

Rule 16 thus will be a more accurate reflection of actual practice.

Subdivision (b); Scheduling and Planning. The most significant

change in Rule 16 is the mandatory scheduling order described in

Rule 16(b), which is based in part on Wisconsin Civil Procedure

Rule 802.10. The idea of scheduling orders is not new. It has been

used by many federal courts. See, e.g., Southern District of

Indiana, Local Rule 19.

Although a mandatory scheduling order encourages the court to

become involved in case management early in the litigation, it

represents a degree of judicial involvement that is not warranted

in many cases. Thus, subdivision (b) permits each district court to

promulgate a local rule under Rule 83 exempting certain categories

of cases in which the burdens of scheduling orders exceed the

administrative efficiencies that would be gained. See Eastern

District of Virginia, Local Rule 12(1). Logical candidates for this

treatment include social security disability matters, habeas corpus

petitions, forfeitures, and reviews of certain administrative

actions.

A scheduling conference may be requested either by the judge, a

magistrate when authorized by district court rule, or a party

within 120 days after the summons and complaint are filed. If a

scheduling conference is not arranged within that time and the case

is not exempted by local rule, a scheduling order must be issued

under Rule 16(b), after some communication with the parties, which

may be by telephone or mail rather than in person. The use of the

term "judge" in subdivision (b) reflects the Advisory Committee's

judgment that is it preferable that this task should be handled by

a district judge rather than a magistrate, except when the

magistrate is acting under 28 U.S.C. Sec. 636(c). While personal

supervision by the trial judge is preferred, the rule, in

recognition of the impracticality or difficulty of complying with

such a requirement in some districts, authorizes a district by

local rule to delegate the duties to a magistrate. In order to

formulate a practicable scheduling order, the judge, or a

magistrate when authorized by district court rule, and attorneys

are required to develop a timetable for the matters listed in Rule

16(b)(1)-(3). As indicated in Rule 16(b)(4)-(5), the order may also

deal with a wide range of other matters. The rule is phrased

permissively as to clauses (4) and (5), however, because scheduling

these items at an early point may not be feasible or appropriate.

Even though subdivision (b) relates only to scheduling, there is no

reason why some of the procedural matters listed in Rule 16(c)

cannot be addressed at the same time, at least when a scheduling

conference is held.

Item (1) assures that at some point both the parties and the

pleadings will be fixed, by setting a time within which joinder of

parties shall be completed and the pleadings amended.

Item (2) requires setting time limits for interposing various

motions that otherwise might be used as stalling techniques.

Item (3) deals with the problem of procrastination and delay by

attorneys in a context in which scheduling is especially important

- discovery. Scheduling the completion of discovery can serve some

of the same functions as the conference described in Rule 26(f).

Item (4) refers to setting dates for conferences and for trial.

Scheduling multiple pretrial conferences may well be desirable if

the case is complex and the court believes that a more elaborate

pretrial structure, such as that described in the Manual for

Complex Litigation, should be employed. On the other hand, only one

pretrial conference may be necessary in an uncomplicated case.

As long as the case is not exempted by local rule, the court must

issue a written scheduling order even if no scheduling conference

is called. The order, like pretrial orders under the former rule

and those under new Rule 16(c), normally will "control the

subsequent course of the action." See Rule 16(e). After

consultation with the attorneys for the parties and any

unrepresented parties - a formal motion is not necessary - the

court may modify the schedule on a showing of good cause if it

cannot reasonably be met despite the diligence of the party seeking

the extension. Since the scheduling order is entered early in the

litigation, this standard seems more appropriate than a "manifest

injustice" or "substantial hardship" test. Otherwise, a fear that

extensions will not be granted may encourage counsel to request the

longest possible periods for completing pleading, joinder, and

discovery. Moreover, changes in the court's calendar sometimes will

oblige the judge or magistrate when authorized by district court

rule to modify the scheduling order.

The district courts undoubtedly will develop several prototype

scheduling orders for different types of cases. In addition, when

no formal conference is held, the court may obtain scheduling

information by telephone, mail, or otherwise. In many instances

this will result in a scheduling order better suited to the

individual case than a standard order, without taking the time that

would be required by a formal conference.

Rule 16(b) assures that the judge will take some early control

over the litigation, even when its character does not warrant

holding a scheduling conference. Despite the fact that the process

of preparing a scheduling order does not always bring the attorneys

and judge together, the fixing of time limits serves

to stimulate litigants to narrow the areas of inquiry and

advocacy to those they believe are truly relevant and material.

Time limits not only compress the amount of time for litigation,

they should also reduce the amount of resources invested in

litigation. Litigants are forced to establish discovery

priorities and thus to do the most important work first.

Report of the National Commission for the Review of Antitrust Laws

and Procedures 28 (1979).

Thus, except in exempted cases, the judge or a magistrate when

authorized by district court rule will have taken some action in

every case within 120 days after the complaint is filed that

notifies the attorneys that the case will be moving toward trial.

Subdivision (b) is reenforced by subdivision (f), which makes it

clear that the sanctions for violating a scheduling order are the

same as those for violating a pretrial order.

Subdivision (c); Subjects to be Discussed at Pretrial

Conferences. This subdivision expands upon the list of things that

may be discussed at a pretrial conference that appeared in original

Rule 16. The intention is to encourage better planning and

management of litigation. Increased judicial control during the

pretrial process accelerates the processing and termination of

cases. Flanders, Case Management and Court Management in United

States District Courts, Federal Judicial Center (1977). See also

Report of the National Commission for the Review of Antitrust Laws

and Procedures (1979).

The reference in Rule 16(c)(1) to "formulation" is intended to

clarify and confirm the court's power to identify the litigable

issues. It has been added in the hope of promoting efficiency and

conserving judicial resources by identifying the real issues prior

to trial, thereby saving time and expense for everyone. See

generally Meadow Gold Prods. Co. v. Wright, 278 F.2d 867 (D.C. Cir.

1960). The notion is emphasized by expressly authorizing the

elimination of frivolous claims or defenses at a pretrial

conference. There is no reason to require that this await a formal

motion for summary judgment. Nor is there any reason for the court

to wait for the parties to initiate the process called for in Rule

16(c)(1).

The timing of any attempt at issue formulation is a matter of

judicial discretion. In relatively simple cases it may not be

necessary or may take the form of a stipulation between counsel or

a request by the court that counsel work together to draft a

proposed order.

Counsel bear a substantial responsibility for assisting the court

in identifying the factual issues worthy of trial. If counsel fail

to identify an issue for the court, the right to have the issue

tried is waived. Although an order specifying the issues is

intended to be binding, it may be amended at trial to avoid

manifest injustice. See Rule 16(e). However, the rule's

effectiveness depends on the court employing its discretion

sparingly.

Clause (6) acknowledges the widespread availability and use of

magistrates. The corresponding provision in the original rule

referred only to masters and limited the function of the reference

to the making of "findings to be used as evidence" in a case to be

tried to a jury. The new text is not limited and broadens the

potential use of a magistrate to that permitted by the Magistrate's

Act.

Clause (7) explicitly recognizes that it has become commonplace

to discuss settlement at pretrial conferences. Since it obviously

eases crowded court dockets and results in savings to the litigants

and the judicial system, settlement should be facilitated at as

early a stage of the litigation as possible. Although it is not the

purpose of Rule 16(b)(7) to impose settlement negotiations on

unwilling litigants, it is believed that providing a neutral forum

for discussing the subject might foster it. See Moore's Federal

Practice ¶ 16.17; 6 Wright & Miller, Federal Practice and

Procedure: Civil Sec. 1522 (1971). For instance, a judge to whom a

case has been assigned may arrange, on his own motion or a at a

party's request, to have settlement conferences handled by another

member of the court or by a magistrate. The rule does not make

settlement conferences mandatory because they would be a waste of

time in many cases. See Flanders, Case Management and Court

Management in the United States District Courts, 39, Federal

Judicial Center (1977). Requests for a conference from a party

indicating a willingness to talk settlement normally should be

honored, unless thought to be frivolous or dilatory.

A settlement conference is appropriate at any time. It may be

held in conjunction with a pretrial or discovery conference,

although various objectives of pretrial management, such as moving

the case toward trial, may not always be compatible with settlement

negotiations, and thus a separate settlement conference may be

desirable. See 6 Wright & Miller, Federal Practice and Procedure:

Civil Sec. 1522, at p. 751 (1971).

In addition to settlement, Rule 16(c)(7) refers to exploring the

use of procedures other than litigation to resolve the dispute.

This includes urging the litigants to employ adjudicatory

techniques outside the courthouse. See, for example, the experiment

described in Green, Marks & Olson, Settling Large Case Litigation:

An Alternative Approach, 11 Loyola of L.A. L.Rev. 493 (1978).

Rule 16(c)(10) authorizes the use of special pretrial procedures

to expedite the adjudication of potentially difficult or protracted

cases. Some district courts obviously have done so for many years.

See Rubin, The Managed Calendar: Some Pragmatic Suggestions About

Achieving the Just, Speedy and Inexpensive Determination of Civil

Cases in Federal Courts, 4 Just. Sys. J. 135 (1976). Clause 10

provides an explicit authorization for such procedures and

encourages their use. No particular techniques have been described;

the Committee felt that flexibility and experience are the keys to

efficient management of complex cases. Extensive guidance is

offered in such documents as the Manual for Complex Litigation.

The rule simply identifies characteristics that make a case a

strong candidate for special treatment. The four mentioned are

illustrative, not exhaustive, and overlap to some degree. But

experience has shown that one or more of them will be present in

every protracted or difficult case and it seems desirable to set

them out. See Kendig, Procedures for Management of Non-Routine

Cases, 3 Hofstra L.Rev. 701 (1975).

The last sentence of subdivision (c) is new. See Wisconsin Civil

Procedure Rule 802.11(2). It has been added to meet one of the

criticisms of the present practice described earlier and insure

proper preconference preparation so that the meeting is more than a

ceremonial or ritualistic event. The reference to "authority" is

not intended to insist upon the ability to settle the litigation.

Nor should the rule be read to encourage the judge conducting the

conference to compel attorneys to enter into stipulations or to

make admissions that they consider to be unreasonable, that touch

on matters that could not normally have been anticipated to arise

at the conference, or on subjects of a dimension that normally

require prior consultation with and approval from the client.

Subdivision (d); Final Pretrial Conference. This provision has

been added to make it clear that the time between any final

pretrial conference (which in a simple case may be the only

pretrial conference) and trail should be as short as possible to be

certain that the litigants make substantial progress with the case

and avoid the inefficiency of having that preparation repeated when

there is a delay between the last pretrial conference and trial. An

optimum time of 10 days to two weeks has been suggested by one

federal judge. Rubin, The Managed Calendar: Some Pragmatic

Suggestions About Achieving the Just, Speedy and Inexpensive

Determination of Civil Cases in Federal Courts, 4 Just. Sys. J.

135, 141 (1976). The Committee, however, concluded that it would be

inappropriate to fix a precise time in the rule, given the numerous

variables that could bear on the matter. Thus the timing has been

left to the court's discretion.

At least one of the attorneys who will conduct the trial for each

party must be present at the final pretrial conference. At this

late date there should be no doubt as to which attorney or

attorneys this will be. Since the agreements and stipulations made

at this final conference will control the trial, the presence of

lawyers who will be involved in it is especially useful to assist

the judge in structuring the case, and to lead to a more effective

trial.

Subdivision (e); Pretrial Orders. Rule 16(e) does not

substantially change the portion of the original rule dealing with

pretrial orders. The purpose of an order is to guide the course of

the litigation and the language of the original rule making that

clear has been retained. No compelling reason has been found for

major revision, especially since this portion of the rule has been

interpreted and clarified by over forty years of judicial decisions

with comparatively little difficulty. See 6 Wright & Miller,

Federal Practice and Procedure: Civil Secs. 1521-30 (1971). Changes

in language therefore have been kept to a minimum to avoid

confusion.

Since the amended rule encourages more extensive pretrial

management than did the original, two or more conferences may be

held in many cases. The language of Rule 16(e) recognizes this

possibility and the corresponding need to issue more than one

pretrial order in a single case.

Once formulated, pretrial orders should not be changed lightly;

but total inflexibility is undesirable. See, e.g., Clark v.

Pennsylvania R.R. Co., 328 F.2d 591 (2d Cir. 1964). The exact words

used to describe the standard for amending the pretrial order

probably are less important than the meaning given them in

practice. By not imposing any limitation on the ability to modify a

pretrial order, the rule reflects the reality that in any process

of continuous management what is done at one conference may have to

be altered at the next. In the case of the final pretrial order,

however, a more stringent standard is called for and the words "to

prevent manifest injustice," which appeared in the original rule,

have been retained. They have the virtue of familiarity and

adequately describe the restraint the trial judge should exercise.

Many local rules make the plaintiff's attorney responsible for

drafting a proposed pretrial order, either before or after the

conference. Others allow the court to appoint any of the attorneys

to perform the task, and others leave it to the court. See Note,

Pretrial Conference: A Critical Examination of Local Rules Adopted

by Federal District Courts, 64 Va.L.Rev. 467 (1978). Rule 16 has

never addressed this matter. Since there is no consensus about

which method of drafting the order works best and there is no

reason to believe that nationwide uniformity is needed, the rule

has been left silent on the point. See Handbook for Effective

Pretrial Procedure, 37 F.R.D. 225 (1964).

Subdivision (f); Sanctions. Original Rule 16 did not mention the

sanctions that might be imposed for failing to comply with the

rule. However, courts have not hesitated to enforce it by

appropriate measures. See, e.g., Link v. Wabash R. Co., 370 U.S.

628 (1962) (district court's dismissal under Rule 41(b) after

plaintiff's attorney failed to appear at a pretrial conference

upheld); Admiral Theatre Corp. v. Douglas Theatre, 585 F.2d 877

(8th Cir. 1978) (district court has discretion to exclude exhibits

or refuse to permit the testimony of a witness not listed prior to

trial in contravention of its pretrial order).

To reflect that existing practice, and to obviate dependence upon

Rule 41(b) or the court's inherent power to regulate litigation,

cf. Societe Internationale Pour Participations Industrielles et

Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958), Rule 16(f)

expressly provides for imposing sanctions on disobedient or

recalcitrant parties, their attorneys, or both in four types of

situations. Rodes, Ripple & Mooney, Sanctions Imposable for

Violations of the Federal Rules of Civil Procedure 65-67, 80-84,

Federal Judicial Center (1981). Furthermore, explicit reference to

sanctions reenforces the rule's intention to encourage forceful

judicial management.

Rule 16(f) incorporates portions of Rule 37(b)(2), which

prescribes sanctions for failing to make discovery. This should

facilitate application of Rule 16(f), since courts and lawyers

already are familiar with the Rule 37 standards. Among the

sanctions authorized by the new subdivision are: preclusion order,

striking a pleading, staying the proceeding, default judgment,

contempt, and charging a party, his attorney, or both with the

expenses, including attorney's fees, caused by noncompliance. The

contempt sanction, however, is only available for a violation of a

court order. The references in Rule 16(f) are not exhaustive.

As is true under Rule 37(b)(2), the imposition of sanctions may

be sought by either the court or a party. In addition, the court

has discretion to impose whichever sanction it feels is appropriate

under the circumstances. Its action is reviewable under the

abuse-of-discretion standard. See National Hockey League v.

Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976).

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Subdivision (b). One purpose of this amendment is to provide a

more appropriate deadline for the initial scheduling order required

by the rule. The former rule directed that the order be entered

within 120 days from the filing of the complaint. This requirement

has created problems because Rule 4(m) allows 120 days for service

and ordinarily at least one defendant should be available to

participate in the process of formulating the scheduling order. The

revision provides that the order is to be entered within 90 days

after the date a defendant first appears (whether by answer or by a

motion under Rule 12) or, if earlier (as may occur in some actions

against the United States or if service is waived under Rule 4),

within 120 days after service of the complaint on a defendant. The

longer time provided by the revision is not intended to encourage

unnecessary delays in entering the scheduling order. Indeed, in

most cases the order can and should be entered at a much earlier

date. Rather, the additional time is intended to alleviate problems

in multi-defendant cases and should ordinarily be adequate to

enable participation by all defendants initially named in the

action.

In many cases the scheduling order can and should be entered

before this deadline. However, when setting a scheduling

conference, the court should take into account the effect this

setting will have in establishing deadlines for the parties to meet

under revised Rule 26(f) and to exchange information under revised

Rule 26(a)(1). While the parties are expected to stipulate to

additional time for making their disclosures when warranted by the

circumstances, a scheduling conference held before defendants have

had time to learn much about the case may result in diminishing the

value of the Rule 26(f) meeting, the parties' proposed discovery

plan, and indeed the conference itself.

New paragraph (4) has been added to highlight that it will

frequently be desirable for the scheduling order to include

provisions relating to the timing of disclosures under Rule 26(a).

While the initial disclosures required by Rule 26(a)(1) will

ordinarily have been made before entry of the scheduling order, the

timing and sequence for disclosure of expert testimony and of the

witnesses and exhibits to be used at trial should be tailored to

the circumstances of the case and is a matter that should be

considered at the initial scheduling conference. Similarly, the

scheduling order might contain provisions modifying the extent of

discovery (e.g., number and length of depositions) otherwise

permitted under these rules or by a local rule.

The report from the attorneys concerning their meeting and

proposed discovery plan, as required by revised Rule 26(f), should

be submitted to the court before the scheduling order is entered.

Their proposals, particularly regarding matters on which they

agree, should be of substantial value to the court in setting the

timing and limitations on discovery and should reduce the time of

the court needed to conduct a meaningful conference under Rule

16(b). As under the prior rule, while a scheduling order is

mandated, a scheduling conference is not. However, in view of the

benefits to be derived from the litigants and a judicial officer

meeting in person, a Rule 16(b) conference should, to the extent

practicable, be held in all cases that will involve discovery.

This subdivision, as well as subdivision (c)(8), also is revised

to reflect the new title of United States Magistrate Judges

pursuant to the Judicial Improvements Act of 1990.

Subdivision (c). The primary purposes of the changes in

subdivision (c) are to call attention to the opportunities for

structuring of trial under Rules 42, 50, and 52 and to eliminate

questions that have occasionally been raised regarding the

authority of the court to make appropriate orders designed either

to facilitate settlement or to provide for an efficient and

economical trial. The prefatory language of this subdivision is

revised to clarify the court's power to enter appropriate orders at

a conference notwithstanding the objection of a party. Of course

settlement is dependent upon agreement by the parties and, indeed,

a conference is most effective and productive when the parties

participate in a spirit of cooperation and mindful of their

responsibilities under Rule 1.

Paragraph (4) is revised to clarify that in advance of trial the

court may address the need for, and possible limitations on, the

use of expert testimony under Rule 702 of the Federal Rules of

Evidence. Even when proposed expert testimony might be admissible

under the standards of Rules 403 and 702 of the evidence rules, the

court may preclude or limit such testimony if the cost to the

litigants - which may include the cost to adversaries of securing

testimony on the same subjects by other experts - would be unduly

expensive given the needs of the case and the other evidence

available at trial.

Paragraph (5) is added (and the remaining paragraphs renumbered)

in recognition that use of Rule 56 to avoid or reduce the scope of

trial is a topic that can, and often should, be considered at a

pretrial conference. Renumbered paragraph (11) enables the court to

rule on pending motions for summary adjudication that are ripe for

decision at the time of the conference. Often, however, the

potential use of Rule 56 is a matter that arises from discussions

during a conference. The court may then call for motions to be

filed.

Paragraph (6) is added to emphasize that a major objective of

pretrial conferences should be to consider appropriate controls on

the extent and timing of discovery. In many cases the court should

also specify the times and sequence for disclosure of written

reports from experts under revised Rule 26(a)(2)(B) and perhaps

direct changes in the types of experts from whom written reports

are required. Consideration should also be given to possible

changes in the timing or form of the disclosure of trial witnesses

and documents under Rule 26(a)(3).

Paragraph (9) is revised to describe more accurately the various

procedures that, in addition to traditional settlement conferences,

may be helpful in settling litigation. Even if a case cannot

immediately be settled, the judge and attorneys can explore

possible use of alternative procedures such as mini-trials, summary

jury trials, mediation, neutral evaluation, and nonbinding

arbitration that can lead to consensual resolution of the dispute

without a full trial on the merits. The rule acknowledges the

presence of statutes and local rules or plans that may authorize

use of some of these procedures even when not agreed to by the

parties. See 28 U.S.C. Secs. 473(a)(6), 473(b)(4), 651-58; Section

104(b)(2), Pub. L. 101-650. The rule does not attempt to resolve

questions as to the extent a court would be authorized to require

such proceedings as an exercise of its inherent powers.

The amendment of paragraph (9) should be read in conjunction with

the sentence added to the end of subdivision (c), authorizing the

court to direct that, in appropriate cases, a responsible

representative of the parties be present or available by telephone

during a conference in order to discuss possible settlement of the

case. The sentence refers to participation by a party or its

representative. Whether this would be the individual party, an

officer of a corporate party, a representative from an insurance

carrier, or someone else would depend on the circumstances.

Particularly in litigation in which governmental agencies or large

amounts of money are involved, there may be no one with on-the-spot

settlement authority, and the most that should be expected is

access to a person who would have a major role in submitting a

recommendation to the body or board with ultimate decision-making

responsibility. The selection of the appropriate representative

should ordinarily be left to the party and its counsel. Finally, it

should be noted that the unwillingness of a party to be available,

even by telephone, for a settlement conference may be a clear

signal that the time and expense involved in pursuing settlement is

likely to be unproductive and that personal participation by the

parties should not be required.

The explicit authorization in the rule to require personal

participation in the manner stated is not intended to limit the

reasonable exercise of the court's inherent powers, e.g., G.

Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648 (7th Cir.

1989), or its power to require party participation under the Civil

Justice Reform Act of 1990. See 28 U.S.C. Sec. 473(b)(5) (civil

justice expense and delay reduction plans adopted by district

courts may include requirement that representatives "with authority

to bind [parties] in settlement discussions" be available during

settlement conferences).

New paragraphs (13) and (14) are added to call attention to the

opportunities for structuring of trial under Rule 42 and under

revised Rules 50 and 52.

Paragraph (15) is also new. It supplements the power of the court

to limit the extent of evidence under Rules 403 and 611(a) of the

Federal Rules of Evidence, which typically would be invoked as a

result of developments during trial. Limits on the length of trial

established at a conference in advance of trial can provide the

parties with a better opportunity to determine priorities and

exercise selectivity in presenting evidence than when limits are

imposed during trial. Any such limits must be reasonable under the

circumstances, and ordinarily the court should impose them only

after receiving appropriate submissions from the parties outlining

the nature of the testimony expected to be presented through

various witnesses, and the expected duration of direct and

cross-examination.

-End-

-CITE-

28 USC APPENDIX IV. PARTIES 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IV. PARTIES

-HEAD-

IV. PARTIES

-End-

-CITE-

28 USC APPENDIX Rule 17 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IV. PARTIES

-HEAD-

Rule 17. Parties Plaintiff and Defendant; Capacity

-STATUTE-

(a) Real Party in Interest. Every action shall be prosecuted in

the name of the real party in interest. An executor, administrator,

guardian, bailee, trustee of an express trust, a party with whom or

in whose name a contract has been made for the benefit of another,

or a party authorized by statute may sue in that person's own name

without joining the party for whose benefit the action is brought;

and when a statute of the United States so provides, an action for

the use or benefit of another shall be brought in the name of the

United States. No action shall be dismissed on the ground that it

is not prosecuted in the name of the real party in interest until a

reasonable time has been allowed after objection for ratification

of commencement of the action by, or joinder or substitution of,

the real party in interest; and such ratification, joinder, or

substitution shall have the same effect as if the action had been

commenced in the name of the real party in interest.

(b) Capacity To Sue or Be Sued. The capacity of an individual,

other than one acting in a representative capacity, to sue or be

sued shall be determined by the law of the individual's domicile.

The capacity of a corporation to sue or be sued shall be determined

by the law under which it was organized. In all other cases

capacity to sue or be sued shall be determined by the law of the

state in which the district court is held, except (1) that a

partnership or other unincorporated association, which has no such

capacity by the law of such state, may sue or be sued in its common

name for the purpose of enforcing for or against it a substantive

right existing under the Constitution or laws of the United States,

and (2) that the capacity of a receiver appointed by a court of the

United States to sue or be sued in a court of the United States is

governed by Title 28, U.S.C., Sections 754 and 959(a).

(c) Infants or Incompetent Persons. Whenever an infant or

incompetent person has a representative, such as a general

guardian, committee, conservator, or other like fiduciary, the

representative may sue or defend on behalf of the infant or

incompetent person. An infant or incompetent person who does not

have a duly appointed representative may sue by a next friend or by

a guardian ad litem. The court shall appoint a guardian ad litem

for an infant or incompetent person not otherwise represented in an

action or shall make such other order as it deems proper for the

protection of the infant or incompetent person.

-SOURCE-

(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; Pub. L. 100-690,

title VII, Sec. 7049, Nov. 18, 1988, 102 Stat. 4401.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). The real party in interest provision,

except for the last clause which is new, is taken verbatim from

[former] Equity Rule 37 (Parties Generally - Intervention), except

that the word "expressly" has been omitted. For similar provisions

see N.Y.C.P.A. (1937) Sec. 210; Wyo.Rev.Stat.Ann. (1931) Secs.

89-501, 89-502, 89-503; English Rules Under the Judicature Act (The

Annual Practice, 1937) O. 16, r. 8. See also Equity Rule 41 (Suit

to Execute Trusts of Will - Heir as Party). For examples of

statutes of the United States providing particularly for an action

for the use or benefit of another in the name of the United States,

see U.S.C., [former] Title 40, Sec. 270b (Suit by persons

furnishing labor and material for work on public building contracts

* * * may sue on a payment bond, "in the name of the United States

for the use of the person suing") [now 40 U.S.C. Sec. 3133(b),

(c)]; and U.S.C., Title 25, Sec. 201 (Penalties under laws relating

to Indians - how recovered). Compare U.S.C., Title 26, [former]

Sec. 1645(c) (Suits for penalties, fines, and forfeitures, under

this title, where not otherwise provided for, to be in name of

United States).

Note to Subdivision (b). For capacity see generally Clark and

Moore, A New Federal Civil Procedure - II. Pleadings and Parties,

44 Yale L.J. 1291, 1312-1317 (1935) and specifically Coppedge v.

Clinton, 72 F.(2d) 531 (C.C.A.10th, 1934) (natural person); David

Lupton's Sons Co. v. Automobile Club of America, 225 U.S. 489

(1912) (corporation); Puerto Rico v. Russell & Co., 288 U.S. 476

(1933) (unincorporated ass'n.); United Mine Workers of America v.

Coronado Coal Co., 259 U.S. 344 (1922) (federal substantive right

enforced against unincorporated association by suit against the

association in its common name without naming all its members as

parties). This rule follows the existing law as to such

associations, as declared in the case last cited above. Compare

Moffat Tunnel League v. United States, 289 U.S. 113 (1933). See

note to Rule 23, clause (1).

Note to Subdivision (c). The provision for infants and

incompetent persons is substantially [former] Equity Rule 70 (Suits

by or Against Incompetents) with slight additions. Compare the more

detailed English provisions, English Rules Under the Judicature Act

(The Annual Practice, 1937) O. 16, r.r. 16-21.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

The new matter [in subdivision (b)] makes clear the controlling

character of Rule 66 regarding suits by or against a federal

receiver in a federal court.

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

Since the statute states the capacity of a federal receiver to

sue or be sued, a repetitive statement in the rule is confusing and

undesirable.

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

The minor change in the text of the rule is designed to make it

clear that the specific instances enumerated are not exceptions to,

but illustrations of, the rule. These illustrations, of course,

carry no negative implication to the effect that there are not

other instances of recognition as the real party in interest of one

whose standing as such may be in doubt. The enumeration is simply

of cases in which there might be substantial doubt as to the issue

but for the specific enumeration. There are other potentially

arguable cases that are not excluded by the enumeration. For

example, the enumeration states that the promisee in a contract for

the benefit of a third party may sue as real party in interest; it

does not say, because it is obvious, that the third-party

beneficiary may sue (when the applicable law gives him that right.)

The rule adds to the illustrative list of real parties in

interest a bailee - meaning, of course, a bailee suing on behalf of

the bailor with respect to the property bailed. (When the possessor

of property other than the owner sues for an invasion of the

possessory interest he is the real party in interest.) The word

"bailee" is added primarily to preserve the admiralty practice

whereby the owner of a vessel as bailee of the cargo, or the master

of the vessel as bailee of both vessel and cargo, sues for damage

to either property interest or both. But there is no reason to

limit such a provision to maritime situations. The owner of a

warehouse in which household furniture is stored is equally

entitled to sue on behalf of the numerous owners of the furniture

stored. Cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).

The provision that no action shall be dismissed on the ground

that it is not prosecuted in the name of the real party in interest

until a reasonable time has been allowed, after the objection has

been raised, for ratification, substitution, etc., is added simply

in the interests of justice. In its origin the rule concerning the

real party in interest was permissive in purpose: it was designed

to allow an assignee to sue in his own name. That having been

accomplished, the modern function of the rule in its negative

aspect is simply to protect the defendant against a subsequent

action by the party actually entitled to recover, and to insure

generally that the judgment will have its proper effect as res

judicata.

This provision keeps pace with the law as it is actually

developing. Modern decisions are inclined to be lenient when an

honest mistake has been made in choosing the party in whose name

the action is to be filed - in both maritime and nonmaritime cases.

See Levinson v. Deupree, 345 U.S. 648 (1953); Link Aviation, Inc.

v. Downs, 325 F.2d 613 (D.C.Cir. 1963). The provision should not be

misunderstood or distorted. It is intended to prevent forfeiture

when determination of the proper party to sue is difficult or when

an understandable mistake has been made. It does not mean, for

example, that, following an airplane crash in which all aboard were

killed, an action may be filed in the name of John Doe (a

fictitious person), as personal representative of Richard Roe

(another fictitious person), in the hope that at a later time the

attorney filing the action may substitute the real name of the real

personal representative of a real victim, and have the benefit of

suspension of the limitation period. It does not even mean, when an

action is filed by the personal representative of John Smith, of

Buffalo, in the good faith belief that he was aboard the flight,

that upon discovery that Smith is alive and well, having missed the

fatal flight, the representative of James Brown, of San Francisco,

an actual victim, can be substituted to take advantage of the

suspension of the limitation period. It is, in cases of this sort,

intended to insure against forfeiture and injustice - in short, to

codify in broad terms the salutary principle of Levinson v.

Deupree, 345 U.S. 648 (1953), and Link Aviation, Inc. v. Downs, 325

F.2d 613 (D.C.Cir. 1963).

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT

The amendment is technical. No substantive change is intended.

AMENDMENT BY PUBLIC LAW

1988 - Subd. (a). Pub. L. 100-690, which directed amendment of

subd. (a) by striking "with him", could not be executed because of

the intervening amendment by the Court by order dated Apr. 25,

1988, eff. Aug. 1, 1988.

-End-

-CITE-

28 USC APPENDIX Rule 18 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IV. PARTIES

-HEAD-

Rule 18. Joinder of Claims and Remedies

-STATUTE-

(a) Joinder of Claims. A party asserting a claim to relief as an

original claim, counterclaim, cross-claim, or third-party claim,

may join, either as independent or as alternate claims, as many

claims, legal, equitable, or maritime, as the party has against an

opposing party.

(b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim

is one heretofore cognizable only after another claim has been

prosecuted to a conclusion, the two claims may be joined in a

single action; but the court shall grant relief in that action only

in accordance with the relative substantive rights of the parties.

In particular, a plaintiff may state a claim for money and a claim

to have set aside a conveyance fraudulent as to that plaintiff,

without first having obtained a judgment establishing the claim for

money.

-SOURCE-

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.

Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). 1. Recent development, both in code and

common law states, has been toward unlimited joinder of actions.

See Ill.Rev.Stat. (1937) ch. 110, Sec. 168; N.J.S.A. 2:27-37, as

modified by N.J.Sup.Ct.Rules, Rule 21, 2 N.J.Misc. 1208 (1924);

N.Y.C.P.A. (1937) Sec. 258 as amended by Laws of 1935, ch. 339.

2. This provision for joinder of actions has been patterned upon

[former] Equity Rule 26 (Joinder of Causes of Action) and broadened

to include multiple parties. Compare the English practice, English

Rules Under the Judicature Act (The Annual Practice, 1937) O. 18,

r.r. 1-9 (noting rules 1 and 6). The earlier American codes set

forth classes of joinder, following the now abandoned New York

rule. See N.Y.C.P.A. Sec. 258 before amended in 1935; Compare

Kan.Gen.Stat.Ann. (1935) Sec. 60-601; Wis.Stat. (1935) Sec. 263.04

for the more liberal practice.

3. The provisions of this rule for the joinder of claims are

subject to Rule 82 (Jurisdiction and Venue Unaffected). For the

jurisdictional aspects of joinder of claims, see Shulman and

Jaegerman, Some Jurisdictional Limitations on Federal Procedure

(1936), 45 Yale L.J. 393, 397-410. For separate trials of joined

claims, see Rule 42(b).

Note to Subdivision (b). This rule is inserted to make it clear

that in a single action a party should be accorded all the relief

to which he is entitled regardless of whether it is legal or

equitable or both. This necessarily includes a deficiency judgment

in foreclosure actions formerly provided for in [former] Equity

Rule 10 (Decree for Deficiency in Foreclosures, Etc.). In respect

to fraudulent conveyances the rule changes the former rule

requiring a prior judgment against the owner (Braun v. American

Laundry Mach. Co., 56 F.(2d) 197 (S.D.N.Y. 1932)) to conform to the

provisions of the Uniform Fraudulent Conveyance Act, Secs. 9 and

10. See McLaughlin, Application of the Uniform Fraudulent

Conveyance Act, 46 Harv.L.Rev. 404, 444 (1933).

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

The Rules "proceed upon the theory that no inconvenience can

result from the joinder of any two or more matters in the

pleadings, but only from trying two or more matters together which

have little or nothing in common." Sunderland, The New Federal

Rules, 45 W.Va.L.Q. 5, 13 (1938); see Clark, Code Pleading 58 (2d

ed. 1947). Accordingly, Rule 18(a) has permitted a party to plead

multiple claims of all types against an opposing party, subject to

the court's power to direct an appropriate procedure for trying the

claims. See Rules 42(b), 20(b), 21.

The liberal policy regarding joinder of claims in the pleadings

extends to cases with multiple parties. However, the language used

in the second sentence of Rule 18(a) - "if the requirements of

Rules 19 [necessary joinder of parties], 20 [permissive joinder of

parties], and 22 [interpleader] are satisfied" - has led some

courts to infer that the rules regulating joinder of parties are

intended to carry back to Rule 18(a) and to impose some special

limits on joinder of claims in multiparty cases. In particular,

Rule 20(a) has been read as restricting the operation of Rule 18(a)

in certain situations in which a number of parties have been

permissively joined in an action. In Federal Housing Admr. v.

Christianson, 26 F.Supp. 419 (D.Conn. 1939), the indorsee of two

notes sued the three comakers of one note, and sought to join in

the action a count on a second note which had been made by two of

the three defendants. There was no doubt about the propriety of the

joinder of the three parties defendant, for a right to relief was

being asserted against all three defendants which arose out of a

single "transaction" (the first note) and a question of fact or law

"common" to all three defendants would arise in the action. See the

text of Rule 20(a). The court, however, refused to allow the

joinder of the count on the second note, on the ground that this

right to relief, assumed to arise from a distinct transaction, did

not involve a question common to all the defendants but only two of

them. For analysis of the Christianson case and other authorities,

see 2 Barron & Holtzoff, Federal Practice & Procedure, Sec. 533.1

(Wright ed. 1961); 3 Moore's Federal Practice, par. 18.04[3] (2d

ed. 1963).

If the court's view is followed, it becomes necessary to enter at

the pleading stage into speculations about the exact relation

between the claim sought to be joined against fewer than all the

defendants properly joined in the action, and the claims asserted

against all the defendants. Cf. Wright, Joinder of Claims and

Parties Under Modern Pleading Rules, 36 Minn.L.Rev. 580, 605-06

(1952). Thus if it could be found in the Christianson situation

that the claim on the second note arose out of the same transaction

as the claim on the first or out of a transaction forming part of a

"series," and that any question of fact or law with respect to the

second note also arose with regard to the first, it would be held

that the claim on the second note could be joined in the complaint.

See 2 Barron & Holtzoff, supra, at 199; see also id. at 198 n.

60.4; cf. 3 Moore's Federal Practice, supra, at 1811. Such pleading

niceties provide a basis for delaying and wasteful maneuver. It is

more compatible with the design of the Rules to allow the claim to

be joined in the pleading, leaving the question of possible

separate trial of that claim to be later decided. See 2 Barron &

Holtzoff, supra, Sec. 533.1; Wright, supra, 36 Minn.L.Rev. at

604-11; Developments in the Law - Multiparty Litigation in the

Federal Courts, 71 Harv. 874, 970-71 (1958); Commentary, Relation

Between Joinder of Parties and Joinder of Claims, 5 F.R.Serv. 822

(1942). It is instructive to note that the court in the

Christianson case, while holding that the claim on the second note

could not be joined as a matter of pleading, held open the

possibility that both claims would later be consolidated for trial

under Rule 42(a). See 26 F.Supp. 419.

Rule 18(a) is now amended not only to overcome the Christianson

decision and similar authority, but also to state clearly as a

comprehensive proposition, that a party asserting a claim (an

original claim, counterclaim, cross-claim, or third-party claim)

may join as many claims as he has against an opposing party. See

Noland Co., Inc. v. Graver Tank & Mfg. Co., 301 F.2d 43, 49-51 (4th

Cir. 1962); but cf. C. W. Humphrey Co. v. Security Alum. Co., 31

F.R.D. 41 (E.D.Mich. 1962) This permitted joinder of claims is not

affected by the fact that there are multiple parties in the action.

The joinder of parties is governed by other rules operating

independently.

It is emphasized that amended Rule 18(a) deals only with

pleading. As already indicated, a claim properly joined as a matter

of pleading need not be proceeded with together with the other

claim if fairness or convenience justifies separate treatment.

Amended Rule 18(a), like the rule prior to amendment, does not

purport to deal with questions of jurisdiction or venue which may

arise with respect to claims properly joined as a matter of

pleading. See Rule 82.

See also the amendment of Rule 20(a) and the Advisory Committee's

Note thereto.

Free joinder of claims and remedies is one of the basic purposes

of unification of the admiralty and civil procedure. The amendment

accordingly provides for the inclusion in the rule of maritime

claims as well as those which are legal and equitable in character.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 19 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IV. PARTIES

-HEAD-

Rule 19. Joinder of Persons Needed for Just Adjudication

-STATUTE-

(a) Persons To Be Joined if Feasible. A person who is subject to

service of process and whose joinder will not deprive the court of

jurisdiction over the subject matter of the action shall be joined

as a party in the action if (1) in the person's absence complete

relief cannot be accorded among those already parties, or (2) the

person claims an interest relating to the subject of the action and

is so situated that the disposition of the action in the person's

absence may (i) as a practical matter impair or impede the person's

ability to protect that interest or (ii) leave any of the persons

already parties subject to a substantial risk of incurring double,

multiple, or otherwise inconsistent obligations by reason of the

claimed interest. If the person has not been so joined, the court

shall order that the person be made a party. If the person should

join as a plaintiff but refuses to do so, the person may be made a

defendant, or, in a proper case, an involuntary plaintiff. If the

joined party objects to venue and joinder of that party would

render the venue of the action improper, that party shall be

dismissed from the action.

(b) Determination by Court Whenever Joinder Not Feasible. If a

person as described in subdivision (a)(1)-(2) hereof cannot be made

a party, the court shall determine whether in equity and good

conscience the action should proceed among the parties before it,

or should be dismissed, the absent person being thus regarded as

indispensable. The factors to be considered by the court include:

first, to what extent a judgment rendered in the person's absence

might be prejudicial to the person or those already parties;

second, the extent to which, by protective provisions in the

judgment, by the shaping of relief, or other measures, the

prejudice can be lessened or avoided; third, whether a judgment

rendered in the person's absence will be adequate; fourth, whether

the plaintiff will have an adequate remedy if the action is

dismissed for nonjoinder.

(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim

for relief shall state the names, if known to the pleader, of any

persons as described in subdivision (a)(1)-(2) hereof who are not

joined, and the reasons why they are not joined.

(d) Exception of Class Actions. This rule is subject to the

provisions of Rule 23.

-SOURCE-

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.

Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). The first sentence with verbal

differences (e.g., "united" interest for "joint" interest) is to be

found in [former] Equity Rule 37 (Parties Generally -

Intervention). Such compulsory joinder provisions are common.

Compare Alaska Comp. Laws (1933) Sec. 3392 (containing in same

sentence a "class suit" provision); Wyo.Rev.Stat.Ann. (Courtright,

1931) Sec. 89-515 (immediately followed by "class suit" provisions,

Sec. 89-516). See also [former] Equity Rule 42 (Joint and Several

Demands). For example of a proper case for involuntary plaintiff,

see Independent Wireless Telegraph Co. v. Radio Corp. of America,

269 U.S. 459 (1926).

The joinder provisions of this rule are subject to Rule 82

(Jurisdiction and Venue Unaffected).

Note to Subdivision (b). For the substance of this rule see

[former] Equity Rule 39 (Absence of Persons Who Would be Proper

Parties) and U.S.C., Title 28, Sec. 111 [now 1391] (When part of

several defendants cannot be served); Camp v. Gress, 250 U.S. 308

(1919). See also the second and third sentences of [former] Equity

Rule 37 (Parties Generally - Intervention).

Note to Subdivision (c). For the substance of this rule see the

fourth subdivision of [former] Equity Rule 25 (Bill of Complaint -

Contents).

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

GENERAL CONSIDERATIONS

Whenever feasible, the persons materially interested in the

subject of an action - see the more detailed description of these

persons in the discussion of new subdivision (a) below - should be

joined as parties so that they may be heard and a complete

disposition made. When this comprehensive joinder cannot be

accomplished - a situation which may be encountered in Federal

courts because of limitations on service of process, subject matter

jurisdiction, and venue - the case should be examined pragmatically

and a choice made between the alternatives of proceeding with the

action in the absence of particular interested persons, and

dismissing the action.

Even if the court is mistaken in its decision to proceed in the

absence of an interested person, it does not by that token deprive

itself of the power to adjudicate as between the parties already

before it through proper service of process. But the court can make

a legally binding adjudication only between the parties actually

joined in the action. It is true that an adjudication between the

parties before the court may on occasion adversely affect the

absent person as a practical matter, or leave a party exposed to a

later inconsistent recovery by the absent person. These are factors

which should be considered in deciding whether the action should

proceed, or should rather be dismissed; but they do not themselves

negate the court's power to adjudicate as between the parties who

have been joined.

DEFECTS IN THE ORIGINAL RULE

The foregoing propositions were well understood in the older

equity practice, see Hazard, Indispensable Party: The Historical

Origin of a Procedural Phantom, 61 Colum.L.Rev. 1254 (1961), and

Rule 19 could be and often was applied in consonance with them. But

experience showed that the rule was defective in its phrasing and

did not point clearly to the proper basis of decision.

Textual defects. - (1) The expression "persons * * * who ought to

be parties if complete relief is to be accorded between those

already parties," appearing in original subdivision (b), was

apparently intended as a description of the persons whom it would

be desirable to join in the action, all questions of feasibility of

joinder being put to one side; but it was not adequately

descriptive of those persons.

(2) The word "Indispensable," appearing in original subdivision

(b), was apparently intended as an inclusive reference to the

interested persons in whose absence it would be advisable, all

factors having been considered, to dismiss the action. Yet the

sentence implied that there might be interested persons, not

"indispensable." in whose absence the action ought also to be

dismissed. Further, it seemed at least superficially plausible to

equate the word "indispensable" with the expression "having a joint

interest," appearing in subdivision (a). See United States v.

Washington Inst. of Tech., Inc., 138 F.2d 25, 26 (3d Cir. 1943);

cf. Chidester v. City of Newark, 162 F.2d 598 (3d Cir. 1947). But

persons holding an interest technically "joint" are not always so

related to an action that it would be unwise to proceed without

joining all of them, whereas persons holding an interest not

technically "joint" may have this relation to an action. See Reed,

Compulsory Joinder of Parties in Civil Actions, 55 Mich.L.Rev. 327,

356 ff., 483 (1957).

(3) The use of "indispensable" and "joint interest" in the

context of original Rule 19 directed attention to the technical or

abstract character of the rights or obligations of the persons

whose joinder was in question, and correspondingly distracted

attention from the pragmatic considerations which should be

controlling.

(4) The original rule, in dealing with the feasibility of joining

a person as a party to the action, besides referring to whether the

person was "subject to the jurisdiction of the court as to both

service of process and venue," spoke of whether the person could be

made a party "without depriving the court of jurisdiction of the

parties before it." The second quoted expression used

"jurisdiction" in the sense of the competence of the court over the

subject matter of the action, and in this sense the expression was

apt. However, by a familiar confusion, the expression seems to have

suggested to some that the absence from the lawsuit of a person who

was "indispensable" or "who ought to be [a] part[y]" itself

deprived the court of the power to adjudicate as between the

parties already joined. See Samuel Goldwyn, Inc. v. United Artists

Corp., 113 F.2d 703, 707 (3d Cir. 1940); McArthur v. Rosenbaum Co.

of Pittsburgh, 180 F.2d 617, 621 (3d Cir. 1949); cf. Calcote v.

Texas Pac. Coal & Oil Co., 157 F.2d 216 (5th Cir. 1946), cert.

denied, 329 U.S. 782 (1946), noted in 56 Yale L.J. 1088 (1947);

Reed, supra, 55 Mich.L.Rev. at 332-34.

Failure to point to correct basis of decision. The original rule

did not state affirmatively what factors were relevant in deciding

whether the action should proceed or be dismissed when joinder of

interested persons was infeasible. In some instances courts did not

undertake the relevant inquiry or were misled by the "jurisdiction"

fallacy. In other instances there was undue preoccupation with

abstract classifications of rights or obligations, as against

consideration of the particular consequences of proceeding with the

action and the ways by which these consequences might be

ameliorated by the shaping of final relief or other precautions.

Although these difficulties cannot be said to have been general

analysis of the cases showed that there was good reason for

attempting to strengthen the rule. The literature also indicated

how the rule should be reformed. See Reed, supra (discussion of the

important case of Shields v. Barrow, 17 How. (58 U.S.) 130 (1854),

appears at 55 Mich.L.Rev., p. 340 ff.); Hazard, supra; N.Y.

Temporary Comm. on Courts, First Preliminary Report, Legis.Doc.

1957, No. 6(b), pp. 28, 233; N.Y. Judicial Council, Twelfth

Ann.Rep., Legis.Doc. 1946, No. 17, p. 163; Joint Comm. on Michigan

Procedural Revision, Final Report, Pt. III, p. 69 (1960); Note,

Indispensable Parties in the Federal Courts, 65 Harv.L.Rev. 1050

(1952); Developments in the Law - Multiparty Litigation in the

Federal Courts, 71 Harv.L.Rev. 874, 879 (1958); Mich.Gen.Court

Rules, R. 205 (effective Jan. 1, 1963); N.Y.Civ.Prac.Law & Rules,

Sec. 1001 (effective Sept. 1, 1963).

THE AMENDED RULE

New subdivision (a) defines the persons whose joinder in the

action is desirable. Clause (1) stresses the desirability of

joining those persons in whose absence the court would be obliged

to grant partial or "hollow" rather than complete relief to the

parties before the court. The interests that are being furthered

here are not only those of the parties, but also that of the public

in avoiding repeated lawsuits on the same essential subject matter.

Clause (2)(i) recognizes the importance of protecting the person

whose joinder is in question against the practical prejudice to him

which may arise through a disposition of the action in his absence.

Clause (2)(ii) recognizes the need for considering whether a party

may be left, after the adjudication, in a position where a person

not joined can subject him to a double or otherwise inconsistent

liability. See Reed, supra, 55 Mich.L.Rev. at 330, 338; Note,

supra, 65 Harv.L.Rev. at 1052-57; Developments in the Law, supra,

71 Harv.L.Rev. at 881-85.

The subdivision (a) definition of persons to be joined is not

couched in terms of the abstract nature of their interests -

"joint," "united," "separable," or the like. See N.Y. Temporary

Comm. on Courts, First Preliminary Report, supra; Developments in

the Law, supra, at 880. It should be noted particularly, however,

that the description is not at variance with the settled

authorities holding that a tortfeasor with the usual

"joint-and-several" liability is merely a permissive party to an

action against another with like liability. See 3 Moore's Federal

Practice 2153 (2d ed. 1963); 2 Barron & Holtzoff, Federal Practice

& Procedure Sec. 513.8 (Wright ed. 1961). Joinder of these

tortfeasors continues to be regulated by Rule 20; compare Rule 14

on third-party practice.

If a person as described in subdivision (a)(1)(2) is amenable to

service of process and his joinder would not deprive the court of

jurisdiction in the sense of competence over the action, he should

be joined as a party; and if he has not been joined, the court

should order him to be brought into the action. If a party joined

has a valid objection to the venue and chooses to assert it, he

will be dismissed from the action.

Subdivision (b). - When a person as described in subdivision

(a)(1)-(2) cannot be made a party, the court is to determine

whether in equity and good conscience the action should proceed

among the parties already before it, or should be dismissed. That

this decision is to be made in the light of pragmatic

considerations has often been acknowledged by the courts. See Roos

v. Texas Co., 23 F.2d 171 (2d Cir. 1927), cert. denied, 277 U.S.

587 (1928); Niles-Bement-Pond Co. v. Iron Moulders, Union, 254 U.S.

77, 80 (1920). The subdivision sets out four relevant

considerations drawn from the experience revealed in the decided

cases. The factors are to a certain extent overlapping, and they

are not intended to exclude other considerations which may be

applicable in particular situations.

The first factor brings in a consideration of what a judgment in

the action would mean to the absentee. Would the absentee be

adversely affected in a practical sense, and if so, would the

prejudice be immediate and serious, or remote and minor? The

possible collateral consequences of the judgment upon the parties

already joined are also to be appraised. Would any party be exposed

to a fresh action by the absentee, and if so, how serious is the

threat? See the elaborate discussion in Reed, supra; cf. A. L.

Smith Iron Co. v. Dickson, 141 F.2d 3 (2d Cir. 1944); Caldwell Mfg.

Co. v. Unique Balance Co., 18 F.R.D. 258 (S.D.N.Y. 1955).

The second factor calls attention to the measures by which

prejudice may be averted or lessened. The "shaping of relief" is a

familiar expedient to this end. See, e.g., the award of money

damages in lieu of specific relief where the latter might affect an

absentee adversely. Ward v. Deavers, 203 F.2d 72 (D.C.Cir. 1953);

Miller & Lux, Inc. v. Nickel, 141 F.Supp. 41 (N.D.Calif. 1956). On

the use of "protective provisions," see Roos v. Texas Co., supra;

Atwood v. Rhode Island Hosp. Trust Co., 275 Fed. 513, 519 (1st Cir.

1921), cert. denied, 257 U.S. 661 (1922); cf. Stumpf v. Fidelity

Gas Co., 294 F.2d 886 (9th Cir. 1961); and the general statement in

National Licorice Co. v. Labor Board, 309 U.S. 350, 363 (1940).

Sometimes the party is himself able to take measures to avoid

prejudice. Thus a defendant faced with a prospect of a second suit

by an absentee may be in a position to bring the latter into the

action by defensive interpleader. See Hudson v. Newell, 172 F.2d

848, 852 mod., 176 F.2d 546 (5th Cir. 1949); Gauss v. Kirk, 198

F.2d 83, 86 (D.C.Cir. 1952); Abel v. Brayton Flying Service, Inc.,

248 F.2d 713, 716 (5th Cir. 1957) (suggestion of possibility of

counterclaim under Rule 13(h)); cf. Parker Rust-Proof Co. v.

Western Union Tel. Co., 105 F.2d 976 (2d Cir. 1939) cert. denied,

308 U.S. 597 (1939). See also the absentee may sometimes be able to

avert prejudice to himself by voluntarily appearing in the action

or intervening on an ancillary basis. See Developments in the Law,

supra, 71 Harv.L.Rev. at 882; Annot., Intervention or Subsequent

Joinder of Parties as Affecting Jurisdiction of Federal Court Based

on Diversity of Citizenship, 134 A.L.R. 335 (1941); Johnson v.

Middleton, 175 F.2d 535 (7th Cir. 1949); Kentucky Nat. Gas Corp. v.

Duggins, 165 F.2d 1011 (6th Cir. 1948); McComb v. McCormack, 159

F.2d 219 (5th Cir. 1947). The court should consider whether this,

in turn, would impose undue hardship on the absentee. (For the

possibility of the court's informing an absentee of the pendency of

the action, see comment under subdivision (c) below.)

The third factor - whether an "adequate" judgment can be rendered

in the absence of a given person - calls attention to the extent of

the relief that can be accorded among the parties joined. It meshes

with the other factors, especially the "shaping of relief"

mentioned under the second factor. Cf. Kroese v. General Steel

Castings Corp., 179 F.2d 760 (3d Cir. 1949), cert. denied, 339 U.S.

983 (1950).

The fourth factor, looking to the practical effects of a

dismissal, indicates that the court should consider whether there

is any assurance that the plaintiff, if dismissed, could sue

effectively in another forum where better joinder would be

possible. See Fitzgerald v. Haynes, 241 F.2d 417, 420 (3d Cir.

1957); Fouke v. Schenewerk, 197 F.2d 234, 236 (5th Cir. 1952); cf.

Warfield v. Marks, 190 F.2d 178 (5th Cir. 1951).

The subdivision uses the word "indispensable" only in a

conclusory sense, that is, a person is "regarded as indispensable"

when he cannot be made a party and, upon consideration of the

factors above mention, it is determined that in his absence it

would be preferable to dismiss the action, rather than to retain

it.

A person may be added as a party at any stage of the action on

motion or on the court's initiative (see Rule 21); and a motion to

dismiss, on the ground that a person has not been joined and

justice requires that the action should not proceed in his absence,

may be made as late as the trial on the merits (see Rule 12(h)(2),

as amended; cf. Rule 12(b)(7), as amended). However, when the

moving party is seeking dismissal in order to protect himself

against a later suit by the absent person (subdivision (a)(2)(ii)),

and is not seeking vicariously to protect the absent person against

a prejudicial judgment (subdivision (a)(2)(i)), his undue delay in

making the motion can properly be counted against him as a reason

for denying the motion. A joinder question should be decided with

reasonable promptness, but decision may properly be deferred if

adequate information is not available at the time. Thus the

relationship of an absent person to the action, and the practical

effects of an adjudication upon him and others, may not be

sufficiently revealed at the pleading stage; in such a case it

would be appropriate to defer decision until the action was further

advanced. Cf. Rule 12(d).

The amended rule makes no special provision for the problem

arising in suits against subordinate Federal officials where it has

often been set up as a defense that some superior officer must be

joined. Frequently this defense has been accompanied by or

intermingled with defenses of sovereign community or lack of

consent of the United States to suit. So far as the issue of

joinder can be isolated from the rest, the new subdivision seems

better adapted to handle it than the predecessor provision. See the

discussion in Johnson v. Kirkland, 290 F.2d 440, 446-47 (5th Cir.

1961) (stressing the practical orientation of the decisions);

Shaughnessy v. Pedreiro, 349 U.S. 48, 54 (1955). Recent

legislation, P.L. 87-748, 76 Stat. 744, approved October 5, 1962,

adding Secs. 1361, 1391(e) to Title 28, U.S.C., vests original

jurisdiction in the District Courts over actions in the nature of

mandamus to compel officials of the United States to perform their

legal duties, and extends the range of service of process and

liberalizes venue in these actions. If, then, it is found that a

particular official should be joined in the action, the legislation

will make it easy to bring him in.

Subdivision (c) parallels the predecessor subdivision (c) of Rule

19. In some situations it may be desirable to advise a person who

has not been joined of the fact that the action is pending, and in

particular cases the court in its discretion may itself convey this

information by directing a letter or other informal notice to the

absentee.

Subdivision (d) repeats the exception contained in the first

clause of the predecessor subdivision (a).

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 20 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IV. PARTIES

-HEAD-

Rule 20. Permissive Joinder of Parties

-STATUTE-

(a) Permissive Joinder. All persons may join in one action as

plaintiffs if they assert any right to relief jointly, severally,

or in the alternative in respect of or arising out of the same

transaction, occurrence, or series of transactions or occurrences

and if any question of law or fact common to all these persons will

arise in the action. All persons (and any vessel, cargo or other

property subject to admiralty process in rem) may be joined in one

action as defendants if there is asserted against them jointly,

severally, or in the alternative, any right to relief in respect of

or arising out of the same transaction, occurrence, or series of

transactions or occurrences and if any question of law or fact

common to all defendants will arise in the action. A plaintiff or

defendant need not be interested in obtaining or defending against

all the relief demanded. Judgment may be given for one or more of

the plaintiffs according to their respective rights to relief, and

against one or more defendants according to their respective

liabilities.

(b) Separate Trials. The court may make such orders as will

prevent a party from being embarrassed, delayed, or put to expense

by the inclusion of a party against whom the party asserts no claim

and who asserts no claim against the party, and may order separate

trials or make other orders to prevent delay or prejudice.

-SOURCE-

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.

Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

The provisions for joinder here stated are in substance the

provisions found in England, California, Illinois, New Jersey, and

New York. They represent only a moderate expansion of the present

federal equity practice to cover both law and equity actions.

With this rule compare also [former] Equity Rules 26 (Joinder of

Causes of Action), 37 (Parties Generally - Intervention), 40

(Nominal Parties), and 42 (Joint and Several Demands).

The provisions of this rule for the joinder of parties are

subject to Rule 82 (Jurisdiction and Venue Unaffected).

Note to Subdivision (a). The first sentence is derived from

English Rules Under the Judicature Act (The Annual Practice, 1937)

O. 16, r. 1. Compare Calif.Code Civ.Proc. (Deering, 1937) Secs.

378, 379a; Ill.Rev.Stat. (1937) ch. 110, Secs. 147-148;

N.J.Comp.Stat. (2 Cum.Supp., 1911-1924), N.Y.C.P.A. (1937) Secs.

209, 211. The second sentence is derived from English Rules Under

the Judicature Act (he Annual Practice, 1937) O. 16, r. 4. The

third sentence is derived from O. 16, r. 5, and the fourth from O.

16, r.r. 1 and 4.

Note to Subdivision (b). This is derived from English Rules Under

the Judicature Act (The Annual Practice, 1937) O. 16, r.r. 1 and 5.

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

See the amendment of Rule 18(a) and the Advisory Committee's Note

thereto. It has been thought that a lack of clarity in the

antecedent of the word "them," as it appeared in two places in Rule

20(a), contributed to the view, taken by some courts, that this

rule limited the joinder of claims in certain situations of

permissive party joinder. Although the amendment of Rule 18(a)

should make clear that this view is untenable, it has been

considered advisable to amend Rule 20(a) to eliminate any

ambiguity. See 2 Barron & Holtzoff, Federal Practice & Procedure

202 (Wright Ed. 1961).

A basic purpose of unification of admiralty and civil procedure

is to reduce barriers to joinder; hence the reference to "any

vessel," etc.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 21 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IV. PARTIES

-HEAD-

Rule 21. Misjoinder and Non-Joinder of Parties

-STATUTE-

Misjoinder of parties is not ground for dismissal of an action.

Parties may be dropped or added by order of the court on motion of

any party or of its own initiative at any stage of the action and

on such terms as are just. Any claim against a party may be severed

and proceeded with separately.

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

See English Rules Under the Judicature Act (The Annual Practice,

1937) O. 16, r. 11. See also [former] Equity Rules 43 (Defect of

Parties - Resisting Objection) and 44 (Defect of Parties - Tardy

Objection).

For separate trials see Rules 13(i) (Counterclaims and

Cross-Claims: Separate Trials; Separate Judgments), 20(b)

(Permissive Joinder of Parties: Separate Trials), and 42(b)

(Separate Trials, generally) and the note to the latter rule.

-End-

-CITE-

28 USC APPENDIX Rule 22 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IV. PARTIES

-HEAD-

Rule 22. Interpleader

-STATUTE-

(1) Persons having claims against the plaintiff may be joined as

defendants and required to interplead when their claims are such

that the plaintiff is or may be exposed to double or multiple

liability. It is not ground for objection to the joinder that the

claims of the several claimants or the titles on which their claims

depend do not have a common origin or are not identical but are

adverse to and independent of one another, or that the plaintiff

avers that the plaintiff is not liable in whole or in part to any

or all of the claimants. A defendant exposed to similar liability

may obtain such interpleader by way of cross-claim or counterclaim.

The provisions of this rule supplement and do not in any way limit

the joinder of parties permitted in Rule 20.

(2) The remedy herein provided is in addition to and in no way

supersedes or limits the remedy provided by Title 28, U.S.C., Secs.

1335, 1397, and 2361. Actions under those provisions shall be

conducted in accordance with these rules.

-SOURCE-

(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987, eff.

Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

The first paragraph provides for interpleader relief along the

newer and more liberal lines of joinder in the alternative. It

avoids the confusion and restrictions that developed around actions

of strict interpleader and actions in the nature of interpleader.

Compare John Hancock Mutual Life Insurance Co. v. Kegan et al.,

(D.C.Md., 1938) [22 F.Supp. 326]. It does not change the rules on

service of process, jurisdiction, and venue, as established by

judicial decision.

The second paragraph allows an action to be brought under the

recent interpleader statute when applicable. By this paragraph all

remedies under the statute are continued, but the manner of

obtaining them is in accordance with these rules. For temporary

restraining orders and preliminary injunctions under this statute,

see Rule 65(e).

This rule substantially continues such statutory provisions as

U.S.C., Title 38, Sec. 445 [now 1984] (Actions on claims;

jurisdiction; parties; procedure; limitation; witnesses;

definitions) (actions upon veterans' contracts of insurance with

the United States), providing for interpleader by the United States

where it acknowledges indebtedness under a contract of insurance

with the United States; U.S.C., Title 49, Sec. 97 [now 80110(e)]

(Interpleader of conflicting claimants) (by carrier which has

issued bill of lading). See Chafee, The Federal Interpleader Act of

1936: I and II (1936), 45 Yale L.J. 963, 1161.

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

The amendment substitutes the present statutory reference.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 23 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IV. PARTIES

-HEAD-

Rule 23. Class Actions

-STATUTE-

(a) Prerequisites to a Class Action. One or more members of a

class may sue or be sued as representative parties on behalf of all

only if (1) the class is so numerous that joinder of all members is

impracticable, (2) there are questions of law or fact common to the

class, (3) the claims or defenses of the representative parties are

typical of the claims or defenses of the class, and (4) the

representative parties will fairly and adequately protect the

interests of the class.

(b) Class Actions Maintainable. An action may be maintained as a

class action if the prerequisites of subdivision (a) are satisfied,

and in addition:

(1) the prosecution of separate actions by or against

individual members of the class would create a risk of

(A) inconsistent or varying adjudications with respect to

individual members of the class which would establish

incompatible standards of conduct for the party opposing the

class, or

(B) adjudications with respect to individual members of the

class which would as a practical matter be dispositive of the

interests of the other members not parties to the adjudications

or substantially impair or impede their ability to protect

their interests; or

(2) the party opposing the class has acted or refused to act on

grounds generally applicable to the class, thereby making

appropriate final injunctive relief or corresponding declaratory

relief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact common to

the members of the class predominate over any questions affecting

only individual members, and that a class action is superior to

other available methods for the fair and efficient adjudication

of the controversy. The matters pertinent to the findings

include: (A) the interest of members of the class in individually

controlling the prosecution or defense of separate actions; (B)

the extent and nature of any litigation concerning the

controversy already commenced by or against members of the class;

(C) the desirability or undesirability of concentrating the

litigation of the claims in the particular forum; (D) the

difficulties likely to be encountered in the management of a

class action.

(c) Determination by Order Whether Class Action To Be Maintained;

Notice; Judgment; Actions Conducted Partially as Class Actions.

(1) As soon as practicable after the commencement of an action

brought as a class action, the court shall determine by order

whether it is to be so maintained. An order under this

subdivision may be conditional, and may be altered or amended

before the decision on the merits.

(2) In any class action maintained under subdivision (b)(3),

the court shall direct to the members of the class the best

notice practicable under the circumstances, including individual

notice to all members who can be identified through reasonable

effort. The notice shall advise each member that (A) the court

will exclude the member from the class if the member so requests

by a specified date; (B) the judgment, whether favorable or not,

will include all members who do not request exclusion; and (C)

any member who does not request exclusion may, if the member

desires, enter an appearance through counsel.

(3) The judgment in an action maintained as a class action

under subdivision (b)(1) or (b)(2), whether or not favorable to

the class, shall include and describe those whom the court finds

to be members of the class. The judgment in an action maintained

as a class action under subdivision (b)(3), whether or not

favorable to the class, shall include and specify or describe

those to whom the notice provided in subdivision (c)(2) was

directed, and who have not requested exclusion, and whom the

court finds to be members of the class.

(4) When appropriate (A) an action may be brought or maintained

as a class action with respect to particular issues, or (B) a

class may be divided into subclasses and each subclass treated as

a class, and the provisions of this rule shall then be construed

and applied accordingly.

(d) Orders in Conduct of Actions. In the conduct of actions to

which this rule applies, the court may make appropriate orders: (1)

determining the course of proceedings or prescribing measures to

prevent undue repetition or complication in the presentation of

evidence or argument; (2) requiring, for the protection of the

members of the class or otherwise for the fair conduct of the

action, that notice be given in such manner as the court may direct

to some or all of the members of any step in the action, or of the

proposed extent of the judgment, or of the opportunity of members

to signify whether they consider the representation fair and

adequate, to intervene and present claims or defenses, or otherwise

to come into the action; (3) imposing conditions on the

representative parties or on intervenors; (4) requiring that the

pleadings be amended to eliminate therefrom allegations as to

representation of absent persons, and that the action proceed

accordingly; (5) dealing with similar procedural matters. The

orders may be combined with an order under Rule 16, and may be

altered or amended as may be desirable from time to time.

(e) Dismissal or Compromise. A class action shall not be

dismissed or compromised without the approval of the court, and

notice of the proposed dismissal or compromise shall be given to

all members of the class in such manner as the court directs.

(f) Appeals. A court of appeals may in its discretion permit an

appeal from an order of a district court granting or denying class

action certification under this rule if application is made to it

within ten days after entry of the order. An appeal does not stay

proceedings in the district court unless the district judge or the

court of appeals so orders.

-SOURCE-

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.

Aug. 1, 1987; Apr. 24, 1998, eff. Dec. 1, 1998.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). This is a substantial restatement of

[former] Equity Rule 38 (Representatives of Class) as that rule has

been construed. It applies to all actions, whether formerly

denominated legal or equitable. For a general analysis of class

actions, effect of judgment, and requisites of jurisdiction see

Moore, Federal Rules of Civil Procedure: Some Problems Raised by

the Preliminary Draft, 25 Georgetown L.J. 551, 570 et seq. (1937);

Moore and Cohn, Federal Class Actions, 32 Ill.L.Rev. 307 (1937);

Moore and Cohn, Federal Class Actions - Jurisdiction and Effect of

Judgment, 32 Ill.L.Rev. 555 - 567 (1938); Lesar, Class Suits and

the Federal Rules, 22 Minn.L.Rev. 34 (1937); cf. Arnold and James,

Cases on Trials, Judgments and Appeals (1936) 175; and see Blume,

Jurisdictional Amount in Representative Suits, 15 Minn.L.Rev. 501

(1931).

The general test of [former] Equity Rule 38 (Representatives of

Class) that the question should be "one of common or general

interest to many persons constituting a class so numerous as to

make it impracticable to bring them all before the court," is a

common test. For states which require the two elements of a common

or general interest and numerous persons, as provided for in

[former] Equity Rule 38, see Del.Ch.Rule 113; Fla.Comp.Gen.Laws

Ann. (Supp., 1936) Sec. 4918 (7); Georgia Code (1933) Sec. 37-1002,

and see English Rules Under the Judicature Act (The Annual

Practice, 1937) O. 16, r. 9. For statutory provisions providing for

class actions when the question is one of common or general

interest or when the parties are numerous, see Ala.Code Ann.

(Michie, 1928) Sec. 5701; 2 Ind.Stat.Ann. (Burns, 1933) Sec. 2-220;

N.Y.C.P.A. (1937) Sec. 195; Wis.Stat. (1935) Sec. 260.12. These

statutes have, however, been uniformly construed as though phrased

in the conjunctive. See Garfein v. Stiglitz, 260 Ky. 430, 86

S.W.(2d) 155 (1935). The rule adopts the test of [former] Equity

Rule 38, but defines what constitutes a "common or general

interest". Compare with code provisions which make the action

dependent upon the propriety of joinder of the parties. See Blume,

The "Common Questions" Principle in the Code Provision for

Representative Suits, 30 Mich.L.Rev. 878 (1932). For discussion of

what constitutes "numerous persons" see Wheaton, Representative

Suits Involving Numerous Litigants, 19 Corn.L.Q. 399 (1934); Note,

36 Harv.L.Rev. 89 (1922).

Clause (1), Joint, Common, or Secondary Right. This clause is

illustrated in actions brought by or against representatives of an

unincorporated association. See Oster v. Brotherhood of Locomotive

Firemen and Enginemen, 271 Pa. 419, 114 Atl. 377 (1921); Pickett v.

Walsh, 192 Mass. 572, 78 N.E. 753, 6 L.R.A. (N.S.) 1067 (1906);

Colt v. Hicks, 97 Ind.App. 177, 179 N.E. 335 (1932). Compare Rule

17(b) as to when an unincorporated association has capacity to sue

or be sued in its common name; United Mine Workers of America v.

Coronado Coal Co., 259 U.S. 344 (1922) (an unincorporated

association was sued as an entity for the purpose of enforcing

against it a federal substantive right); Moore, Federal Rules of

Civil Procedure: Some Problems Raised by the Preliminary Draft, 25

Georgetown L.J. 551, 566 (for discussion of jurisdictional

requisites when an unincorporated association sues or is sued in

its common name and jurisdiction is founded upon diversity of

citizenship). For an action brought by representatives of one group

against representatives of another group for distribution of a fund

held by an unincorporated association, see Smith v. Swormstedt, 16

How. 288 (U.S. 1853). Compare Christopher, et al. v. Brusselback,

58 S.Ct. 350 [302 U.S. 500] (1938).

For an action to enforce rights held in common by policyholders

against the corporate issuer of the policies, see Supreme Tribe of

Ben Hur v. Cauble, 255 U.S. 356 (1921). See also Terry v. Little,

101 U.S. 216 (1880); John A. Roebling's Sons Co. v. Kinnicutt, 248

Fed. 596 (D.C.N.Y., 1917) dealing with the right held in common by

creditors to enforce the statutory liability of stockholders.

Typical of a secondary action is a suit by stockholders to

enforce a corporate right. For discussion of the general nature of

these actions see Ashwander v. Tennessee Valley Authority, 297 U.S.

288 (1936); Glenn, The Stockholder's Suit - Corporate and

Individual Grievances, 33 Yale L.J. 580 (1924); McLaughlin,

Capacity of Plaintiff-Stockholder to Terminate a Stockholder's

Suit, 46 Yale L.J. 421 (1937). See also Subdivision (b) of this

rule which deals with Shareholder's Action; Note, 15 Minn.L.Rev.

453 (1931).

Clause (2). A creditor's action for liquidation or reorganization

of a corporation is illustrative of this clause. An action by a

stockholder against certain named defendants as representatives of

numerous claimants presents a situation converse to the creditor's

action.

Clause (3). See Everglades Drainage League v. Napoleon Broward

Drainage Dist., 253 Fed. 246 (D.C.Fla., 1918); Gramling v. Maxwell,

52 F.(2d) 256 (D.C.N.C., 1931), approved in 30 Mich.L.Rev. 624

(1932); Skinner v. Mitchell, 108 Kan. 861, 197 Pac. 569 (1921);

Duke of Bedford v. Ellis (1901) A.C. 1, for class actions when

there were numerous persons and there was only a question of law or

fact common to them; and see Blume, The "Common Questions"

Principle in the Code Provision for Representative Suits, 30

Mich.L.Rev. 878 (1932).

Note to Subdivision (b). This is [former] Equity Rule 27

(Stockholder's Bill) with verbal changes. See also Hawes v.

Oakland, 104 U.S. 450, 26 L.Ed. 827 (1882) and former Equity Rule

94, promulgated January 23, 1882, 104 U.S. IX.

Note to Subdivision (c). See McLaughlin, Capacity of

Plaintiff-Stockholder to Terminate a Stockholder's Suit, 46 Yale

L.J. 421 (1937).

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Subdivision (b), relating to secondary actions by shareholders,

provides among other things, that in, such an action the

complainant "shall aver (1) that the plaintiff was a shareholder at

the time of the transaction of which he complains or that his share

thereafter devolved on him by operation of law . . ."

As a result of the decision in Erie R. Co. v. Tompkins, 304 U.S.

64 (decided April 25, 1938, after this rule was promulgated by the

Supreme Court, though before it took effect) a question has arisen

as to whether the provision above quoted deals with a matter of

substantive right or is a matter of procedure. If it is a matter of

substantive law or right, then under Erie R. Co. v. Tompkins clause

(1) may not be validly applied in cases pending in states whose

local law permits a shareholder to maintain such actions, although

not a shareholder at the time of the transactions complained of.

The Advisory Committee, believing the question should be settled in

the courts, proposes no change in Rule 23 but thinks rather that

the situation should be explained in an appropriate note.

The rule has a long history. In Hawes v. Oakland (1882) 104 U.S.

450, the Court held that a shareholder could not maintain such an

action unless he owned shares at the time of the transactions

complained of, or unless they devolved on him by operation of law.

At that time the decision in Swift v. Tyson (1842) 16 Peters 1, was

the law, and the federal courts considered themselves free to

establish their own principles of equity jurisprudence, so the

Court was not in 1882 and has not been, until Erie R. Co. v.

Tompkins in 1938, concerned with the question whether Hawes v.

Oakland dealt with substantive right or procedure.

Following the decision in Hawes v. Oakland, and at the same term,

the Court, to implement its decision, adopted [former] Equity Rule

94, which contained the same provision above quoted from Rule 23

F.R.C.P. The provision in [former] Equity Rule 94 was later

embodied in [former] Equity Rule 27, of which the present Rule 23

is substantially a copy.

In City of Quincy v. Steel (1887) 120 U.S. 241, 245, the Court

referring to Hawes v. Oakland said: "In order to give effect to the

principles there laid down, this Court at that term adopted Rule 94

of the rules of practice for courts of equity of the United

States."

Some other cases dealing with [former] Equity Rules 94 or 27

prior to the decision in Erie R. Co. v. Tompkins are Dimpfel v.

Ohio & Miss. R. R. (1884) 110 U.S. 209; Illinois Central R. Co. v.

Adams (1901) 180 U.S. 28, 34; Venner v. Great Northern Ry. (1908)

209 U.S. 24, 30; Jacobson v. General Motors Corp. (S.D.N.Y. 1938)

22 F.Supp. 255, 257. These cases generally treat Hawes v. Oakland

as establishing a "principle" of equity, or as dealing not with

jurisdiction but with the "right" to maintain an action, or have

said that the defense under the equity rule is analogous to the

defense that the plaintiff has no "title" and results in a

dismissal "for want of equity."

Those state decisions which held that a shareholder acquiring

stock after the event may maintain a derivative action are founded

on the view that it is a right belonging to the shareholder at the

time of the transaction and which passes as a right to the

subsequent purchaser. See Pollitz v. Gould (1911) 202 N.Y. 11.

The first case arising after the decision in Erie R. Co. v.

Tompkins, in which this problem was involved, was Summers v. Hearst

(S.D.N.Y. 1938) 23 F.Supp. 986. It concerned [former] Equity Rule

27, as Federal Rule 23 was not then in effect. In a well considered

opinion Judge Leibell reviewed the decisions and said: "The federal

cases that discuss this section of Rule 27 support the view that it

states a principle of substantive law." He quoted Pollitz v. Gould

(1911) 202 N.Y. 11, as saying that the United States Supreme Court

"seems to have been more concerned with establishing this rule as

one of practice than of substantive law" but that "whether it be

regarded as establishing a principle of law or a rule of practice,

this authority has been subsequently followed in the United States

courts."

He then concluded that, although the federal decisions treat the

equity rule as "stating a principle of substantive law", if

[former] "Equity Rule 27 is to be modified or revoked in view of

Erie R. Co. v. Tompkins, it is not the province of this Court to

suggest it, much less impliedly to follow that course by

disregarding the mandatory provisions of the Rule."

Some other federal decisions since 1938 touch the question.

In Piccard v. Sperry Corporation (S.D.N.Y. 1941) 36 F.Supp. 1006,

1009-10, affirmed without opinion (C.C.A.2d, 1941) 120 F.(2d) 328,

a shareholder, not such at the time of the transactions complained

of, sought to intervene. The court held an intervenor was as much

subject to Rule 23 as an original plaintiff; and that the

requirement of Rule 23(b) was "a matter of practice," not

substance, and applied in New York where the state law was

otherwise, despite Erie R. Co. v. Tompkins. In York v. Guaranty

Trust Co. of New York (C.C.A.2d, 1944) 143 F.(2d) 503, rev'd on

other grounds (1945) 65 S.Ct. 1464, the court said: "Restrictions

on the bringing of stockholders' actions, such as those imposed by

F.R.C.P. 23(b) or other state statutes are procedural," citing the

Piccard and other cases.

In Gallup v. Caldwell (C.C.A.3d, 1941) 120 F.(2d) 90, 95, arising

in New Jersey, the point was raised but not decided, the court

saying that it was not satisfied that the then New Jersey rule

differed from Rule 23(b), and that "under the circumstances the

proper course was to follow Rule 23(b)."

In Mullins v. De Soto Securities Co. (W.D.La. 1942) 45 F.Supp.

871, 878, the point was not decided, because the court found the

Louisiana rule to be the same as that stated in Rule 23(b).

In Toebelman v. Missouri-Kansas Pipe Line Co. (D.Del. 1941) 41

F.Supp. 334, 340, the court dealt only with another part of Rule

23(b), relating to prior demands on the stockholders and did not

discuss Erie R. Co. v. Tompkins, or its effect on the rule.

In Perrott v. United States Banking Corp. (D.Del. 1944) 53

F.Supp. 953, it appeared that the Delaware law does not require the

plaintiff to have owned shares at the time of the transaction

complained of. The court sustained Rule 23(b), after discussion of

the authorities, saying:

"It seems to me the rule does not go beyond procedure. * * *

Simply because a particular plaintiff cannot qualify as a proper

party to maintain such an action does not destroy or even whittle

at the cause of action. The cause of action exists until a

qualified plaintiff can get it started in a federal court."

In Bankers Nat. Corp. v. Barr (S.D.N.Y. 1945) 9 Fed.Rules Serv.

23b.11, Case 1, the court held Rule 23(b) to be one of procedure,

but that whether the plaintiff was a stockholder was a substantive

question to be settled by state law.

The New York rule, as stated in Pollitz v. Gould, supra, has been

altered by an act of the New York Legislature (Chapter 667, Laws of

1944, effective April 9, 1944, General Corporation Law, Sec. 61)

which provides that "in any action brought by a shareholder in the

right of a . . . corporation, it must appear that the plaintiff was

a stockholder at the time of the transaction of which he complains,

or that his stock thereafter devolved upon him by operation of

law." At the same time a further and separate provision was

enacted, requiring under certain circumstances the giving of

security for reasonable expenses and attorney's fees, to which

security the corporation in whose right the action is brought and

the defendants therein may have recourse. (Chapter 668, Laws of

1944, effective April 9, 1944, General Corporation Law, Sec. 61-b.)

These provisions are aimed at so-called "strike" stockholders'

suits and their attendant abuses. Shielcrawt v. Moffett (Ct.App.

1945) 294 N.Y. 180, 61 N.E.(2d) 435, rev'g 51 N.Y.S.(2d) 188, aff'g

49 N.Y.S.(2d) 64; Noel Associates, Inc. v. Merrill (Sup.Ct. 1944)

184 Misc. 646, 53 N.Y.S.(2d) 143.

Insofar as Sec. 61 is concerned, it has been held that the

section is procedural in nature. Klum v. Clinton Trust Co. (Sup.Ct.

1944) 183 Misc. 340, 48 N.Y.S.(2d) 267; Noel Associates, Inc. v.

Merrill, supra. In the latter case the court pointed out that "The

1944 amendment to Section 61 rejected the rule laid down in the

Pollitz case and substituted, in place thereof, in its precise

language, the rule which has long prevailed in the Federal Courts

and which is now Rule 23(b) . . ." There is, nevertheless, a

difference of opinion regarding the application of the statute to

pending actions. See Klum v. Clinton Trust Co., supra (applicable);

Noel Associates, Inc. v. Merrill, supra (inapplicable).

With respect to Sec. 61-b, which may be regarded as a separate

problem (Noel Associates, Inc. v. Merrill, supra), it has been held

that even though the statute is procedural in nature - a matter not

definitely decided - the Legislature evinced no intent that the

provision should apply to actions pending when it became effective.

Shielcrawt v. Moffett, supra. As to actions instituted after the

effective date of the legislation, the constitutionality of Sec.

61-b is in dispute. See Wolf v. Atkinson (Sup.Ct. 1944) 182 Misc.

675, 49 N.Y.S.(2d) 703 (constitutional); Citron v. Mangel Stores

Corp. (Sup.Ct. 1944) - Misc. - , 50 N.Y.S.(2d) 416

(unconstitutional); Zlinkoff, The American Investor and the

Constitutionality of Section 61-B of the New York General

Corporation Law (1945) 54 Yale L.J. 352.

New Jersey also enacted a statute, similar to Chapters 667 and

668 of the New York law. See P.L. 1945, Ch. 131, R.S.Cum.Supp.

14:3-15. The New Jersey provision similar to Chapter 668 (Sec.

61-b) differs, however, in that it specifically applies

retroactively. It has been held that this provision is procedural

and hence will not govern a pending action brought against a New

Jersey corporation in the New York courts. Shielcrawt v. Moffett

(Sup.Ct.N.Y. 1945) 184 Misc. 1074, 56 N.Y.S.(2d) 134.

See also generally, 2 Moore's Federal Practice (1938) 2250-2253,

and Cum.Supplement Sec. 23.05.

The decisions here discussed show that the question is a

debatable one, and that there is respectable authority for either

view, with a recent trend towards the view that Rule 23(b)(1) is

procedural. There is reason to say that the question is one which

should not be decided by the Supreme Court ex parte, but left to

await a judicial decision in a litigated case, and that in the

light of the material in this note, the only inference to be drawn

from a failure to amend Rule 23(b) would be that the question is

postponed to await a litigated case.

The Advisory Committee is unanimously of the opinion that this

course should be followed.

If, however, the final conclusion is that the rule deals with a

matter of substantive right, then the rule should be amended by

adding a provision that Rule 23(b)(1) does not apply in

jurisdictions where state law permits a shareholder to maintain a

secondary action, although he was not a shareholder at the time of

the transactions of which he complains.

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

Difficulties with the original rule. The categories of class

actions in the original rule were defined in terms of the abstract

nature of the rights involved: the so-called "true" category was

defined as involving "joint, common, or secondary rights"; the

"hybrid" category, as involving "several" rights related to

"specific property"; the "spurious" category, as involving

"several" rights affected by a common question and related to

common relief. It was thought that the definitions accurately

described the situations amendable to the class-suit device, and

also would indicate the proper extent of the judgment in each

category, which would in turn help to determine the res judicata

effect of the judgment if questioned in a later action. Thus the

judgments in "true" and "hybrid" class actions would extend to the

class (although in somewhat different ways); the judgment in a

"spurious" class action would extend only to the parties including

intervenors. See Moore, Federal Rules of Civil Procedure: Some

Problems Raised by the Preliminary Draft, 25 Geo.L.J. 551, 570-76

(1937).

In practice, the terms "joint," "common," etc., which were used

as the basis of the Rule 23 classification proved obscure and

uncertain. See Chaffee, Some Problems of Equity 245-46, 256-57

(1950); Kalven & Rosenfield, The Contemporary Function of the Class

Suit, 8 U. of Chi.L.Rev. 684, 707 & n. 73 (1941); Keeffe, Levy &

Donovan, Lee Defeats Ben Hur, 33 Corn.L.Q. 327, 329-36 (1948);

Developments in the Law: Multiparty Litigation in the Federal

Courts, 71 Harv.L.Rev. 874, 931 (1958); Advisory Committee's Note

to Rule 19, as amended. The courts had considerable difficulty with

these terms. See, e.g., Gullo v. Veterans' Coop. H. Assn., 13

F.R.D. 11 (D.D.C. 1952); Shipley v. Pittsburgh & L. E. R. Co., 70

F.Supp. 870 (W.D.Pa. 1947); Deckert v. Independence Shares Corp.,

27 F.Supp. 763 (E.D.Pa. 1939), rev'd, 108 F.2d 51 (3d Cir. 1939),

rev'd, 311 U.S. 282 (1940), on remand, 39 F.Supp. 592 (E.D.Pa.

1941), rev'd sub nom. Pennsylvania Co. for Ins. on Lives v.

Deckert, 123 F.2d 979 (3d Cir. 1941) (see Chafee, supra, at

264-65).

Nor did the rule provide an adequate guide to the proper extent

of the judgments in class actions. First, we find instances of the

courts classifying actions as "true" or intimating that the

judgments would be decisive for the class where these results

seemed appropriate but were reached by dint of depriving the word

"several" of coherent meaning. See, e.g., System Federation No. 91

v. Reed, 180 F.2d 991 (6th Cir. 1950); Wilson v. City of Paducah,

100 F.Supp. 116 (W.D.Ky. 1951); Citizens Banking Co. v. Monticello

State Bank, 143 F.2d 261 (8th Cir. 1944); Redmond v. Commerce Trust

Co., 144 F.2d 140 (8th Cir. 1944), cert. denied, 323 U.S. 776

(1944); United States v. American Optical Co., 97 F.Supp. 66

(N.D.Ill. 1951); National Hairdressers' & C. Assn. v. Philad. Co.,

34 F.Supp. 264 (D.Del. 1940); 41 F.Supp. 701 (D.Del. 1940), aff'd

mem., 129 F.2d 1020 (3d Cir. 1942). Second, we find cases

classified by the courts as "spurious" in which, on a realistic

view, it would seem fitting for the judgments to extend to the

class. See, e.g., Knapp v. Bankers Sec. Corp., 17 F.R.D. 245

(E.D.Pa. 1954); aff'd 230 F.2d 717 (3d Cir. 1956); Giesecke v.

Denver Tramway Corp., 81 F.Supp. 957 (D.Del. 1949); York v.

Guaranty Trust Co., 143 F.2d 503 (2d Cir. 1944), rev'd on grounds

not here relevant, 326 U.S. 90 (1945) (see Chafee, supra, at 208);

cf. Webster Eisenlohr, Inc. v. Kalodner, 145 F.2d 316, 320 (3d Cir.

1944), cert. denied, 325 U.S. 807 (1945). But cf. the early

decisions, Duke of Bedford v. Ellis [1901], A.C. 1; Sheffield

Waterworks v. Yeomans, L.R. 2 Ch.App. 8 (1866); Brown v. Vermuden,

1 Ch.Cas. 272, 22 Eng.Rep. 796 (1676).

The "spurious" action envisaged by original Rule 23 was in any

event an anomaly because, although denominated a "class" action and

pleaded as such, it was supposed not to adjudicate the rights or

liabilities of any person not a party. It was believed to be an

advantage of the "spurious" category that it would invite decisions

that a member of the "class" could, like a member of the class in a

"true" or "hybrid" action, intervene on an ancillary basis without

being required to show an independent basis of Federal

jurisdiction, and have the benefit of the date of the commencement

of the action for purposes of the statute of limitations. See 3

Moore's Federal Practice, pars. 23.10[1], 23.12 (2d ed. 1963).

These results were attained in some instances but not in others. On

the statute of limitations, see Union Carbide & Carbon Corp. v.

Nisley, 300 F.2d 561 (10th Cir. 1961), pet. cert. dism., 371 U.S.

801 (1963); but cf. P. W. Husserl, Inc. v. Newman, 25 F.R.D. 264

(S.D.N.Y. 1960); Athas v. Day, 161 F.Supp. 916 (D.Colo. 1958). On

ancillary intervention, see Amen v. Black, 234 F.2d 12 (10th Cir.

1956), cert. granted, 352 U.S. 888 (1956), dism. on stip., 355 U.S.

600 (1958); but. cf. Wagner v. Kemper, 13 F.R.D. 128 (W.D.Mo.

1952). The results, however, can hardly depend upon the mere

appearance of a "spurious" category in the rule; they should turn

no more basic considerations. See discussion of subdivision (c)(1)

below.

Finally, the original rule did not squarely address itself to the

question of the measures that might be taken during the course of

the action to assure procedural fairness, particularly giving

notice to members of the class, which may in turn be related in

some instances to the extension of the judgment to the class. See

Chafee, supra, at 230-31; Keeffe, Levy & Donovan, supra;

Developments in the Law, supra, 71 Harv.L.Rev. at 937-38; Note,

Binding Effect of Class Actions, 67 Harv.L.Rev. 1059, 1062-65

(1954); Note, Federal Class Actions: A Suggested Revision of Rule

23, 46 Colum.L.Rev. 818, 833-36 (1946); Mich.Gen.Court R. 208.4

(effective Jan. 1, 1963); Idaho R.Civ.P. 23(d); Minn.R.Civ.P.

23.04; N.Dak.R.Civ.P. 23(d).

The amended rule describes in more practical terms the occasions

for maintaining class actions; provides that all class actions

maintained to the end as such will result in judgments including

those whom the court finds to be members of the class, whether or

not the judgment is favorable to the class; and refers to the

measures which can be taken to assure the fair conduct of these

actions.

Subdivision (a) states the prerequisites for maintaining any

class action in terms of the numerousness of the class making

joinder of the members impracticable, the existence of questions

common to the class, and the desired qualifications of the

representative parties. See Weinstein, Revision of Procedure; Some

Problems in Class Actions, 9 Buffalo L.Rev. 433, 458-59 (1960); 2

Barron & Holtzoff, Federal Practice & Procedure Sec. 562, at 265,

Sec. 572, at 351-52 (Wright ed. 1961). These are necessary but not

sufficient conditions for a class action. See, e.g., Giordano v.

Radio Corp. of Am., 183 F.2d 558, 560 (3d Cir. 1950); Zachman v.

Erwin, 186 F.Supp. 681 (S.D.Tex. 1959); Baim & Blank, Inc. v.

Warren Connelly Co., Inc., 19 F.R.D. 108 (S.D.N.Y. 1956).

Subdivision (b) describes the additional elements which in varying

situations justify the use of a class action.

Subdivision (b)(1). The difficulties which would be likely to

arise if resort were had to separate actions by or against the

individual members of the class here furnish the reasons for, and

the principal key to, the propriety and value of utilizing the

class-action device. The considerations stated under clauses (A)

and (B) are comparable to certain of the elements which define the

persons whose joinder in an action is desirable as stated in Rule

19(a), as amended. See amended Rule 19(a)(2)(i) and (ii), and the

Advisory Committee's Note thereto; Hazard, Indispensable Party; The

Historical Origin of a Procedural Phantom, 61 Colum.L.Rev. 1254,

1259-60 (1961); cf. 3 Moore, supra, par. 23.08, at 3435.

Clause (A): One person may have rights against, or be under

duties toward, numerous persons constituting a class, and be so

positioned that conflicting or varying adjudications in lawsuits

with individual members of the class might establish incompatible

standards to govern his conduct. The class action device can be

used effectively to obviate the actual or virtual dilemma which

would thus confront the party opposing the class. The matter has

been stated thus: "The felt necessity for a class action is

greatest when the courts are called upon to order or sanction the

alteration of the status quo in circumstances such that a large

number of persons are in a position to call on a single person to

alter the status quo, or to complain if it is altered, and the

possibility exists that [the] actor might be called upon to act in

inconsistent ways." Louisell & Hazard, Pleading and Procedure;

State and Federal 719 (1962); see Supreme Tribe of Ben-Hur v.

Cauble, 255 U.S. 356, 366-67 (1921). To illustrate: Separate

actions by individuals against a municipality to declare a bond

issue invalid or condition or limit it, to prevent or limit the

making of a particular appropriation or to compel or invalidate an

assessment, might create a risk of inconsistent or varying

determinations. In the same way, individual litigations of the

rights and duties of riparian owners, or of landowners' rights and

duties respecting a claimed nuisance, could create a possibility of

incompatible adjudications. Actions by or against a class provide a

ready and fair means of achieving unitary adjudication. See

Maricopa County Mun. Water Con. Dist. v. Looney, 219 F.2d 529 (9th

Cir. 1955); Rank v. Krug, 142 F.Supp. 1, 154-59 (S.D.Calif. 1956),

on app., State of California v. Rank, 293 F.2d 340, 348 (9th Cir.

1961); Gart v. Cole, 263 F.2d 244 (2d Cir. 1959), cert. denied 359

U.S. 978 (1959); cf. Martinez v. Maverick Cty. Water Con. & Imp.

Dist., 219 F.2d 666 (5th Cir. 1955); 3 Moore, supra, par. 23.11[2],

at 3458-59.

Clause (B): This clause takes in situations where the judgment in

a nonclass action by or against an individual member of the class,

while not technically concluding the other members, might do so as

a practical matter. The vice of an individual actions would lie in

the fact that the other members of the class, thus practically

concluded, would have had no representation in the lawsuit. In an

action by policy holders against a fraternal benefit association

attacking a financial reorganization of the society, it would

hardly have been practical, if indeed it would have been possible,

to confine the effects of a validation of the reorganization to the

individual plaintiffs. Consequently a class action was called for

with adequate representation of all members of the class. See

Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 (1921); Waybright

v. Columbian Mut. Life Ins. Co., 30 F.Supp. 885 (W.D.Tenn. 1939);

cf. Smith v. Swormstedt, 16 How. (57 U.S.) 288 (1853). For much the

same reason actions by shareholders to compel the declaration of a

dividend the proper recognition and handling of redemption or

pre-emption rights, or the like (or actions by the corporation for

corresponding declarations of rights), should ordinarily be

conducted as class actions, although the matter has been much

obscured by the insistence that each shareholder has an individual

claim. See Knapp v. Bankers Securities Corp., 17 F.R.D. 245

(E.D.Pa. 1954), aff'd, 230 F.2d 717 (3d Cir. 1956); Giesecke v.

Denver Tramway Corp., 81 F.Supp. 957 (D.Del. 1949); Zahn v.

Transamerica Corp., 162 F.2d 36 (3d Cir. 1947); Speed v.

Transamerica Corp., 100 F.Supp. 461 (D.Del. 1951); Sobel v.

Whittier Corp., 95 F.Supp. 643 (E.D.Mich. 1951), app. dism., 195

F.2d 361 (6th Cir. 1952); Goldberg v. Whittier Corp., 111 F.Supp.

382 (E.D.Mich. 1953); Dann v. Studebaker-Packard Corp., 288 F.2d

201 (6th Cir. 1961); Edgerton v. Armour & Co.,94 F.Supp. 549

(S.D.Calif. 1950); Ames v. Mengel Co., 190 F.2d 344 (2d Cir. 1951).

(These shareholders' actions are to be distinguished from

derivative actions by shareholders dealt with in new Rule 23.1).

The same reasoning applies to an action which charges a breach of

trust by an indenture trustee or other fiduciary similarly

affecting the members of a large class of security holders or other

beneficiaries, and which requires an accounting or like measures to

restore the subject of the trust. See Bosenberg v. Chicago T. & T.

Co., 128 F.2d 245 (7th Cir. 1942); Citizens Banking Co. v.

Monticello State Bank, 143 F.2d 261 (8th Cir. 1944); Redmond v.

Commerce Trust Co., 144 F.2d 140 (8th Cir. 1944), cert. denied, 323

U.S. 776 (1944); cf. York v. Guaranty Trust Co., 143 F.2d 503 (2d

Cir. 1944), rev'd on grounds not here relevant, 326 U.S. 99 (1945).

In various situations an adjudication as to one or more members

of the class will necessarily or probably have an adverse practical

effect on the interests of other members who should therefore be

represented in the lawsuit. This is plainly the case when claims

are made by numerous persons against a fund insufficient to satisfy

all claims. A class action by or against representative members to

settle the validity of the claims as a whole, or in groups,

followed by separate proof of the amount of each valid claim and

proportionate distribution of the fund, meets the problem. Cf.

Dickinson v. Burnham, 197 F.2d 973 (2d Cir. 1952), cert. denied,

344 U.S. 875 (1952); 3 Moore, supra, at par. 23.09. The same

reasoning applies to an action by a creditor to set aside a

fraudulent conveyance by the debtor and to appropriate the property

to his claim, when the debtor's assets are insufficient to pay all

creditors' claims. See Hefferman v. Bennett & Armour, 110

Cal.App.2d 564, 243 P.2d 846 (1952); cf. City & County of San

Francisco v. Market Street Ry., 95 Cal.App.2d 648, 213 P.2d 780

(1950). Similar problems, however, can arise in the absence of a

fund either present or potential. A negative or mandatory

injunction secured by one of a numerous class may disable the

opposing party from performing claimed duties toward the other

members of the class or materially affect his ability to do so. An

adjudication as to movie "clearances and runs" nominally affecting

only one exhibitor would often have practical effects on all the

exhibitors in the same territorial area. Cf. United States v.

Paramount Pictures, Inc., 66 F.Supp. 323, 341-46 (S.D.N.Y. 1946);

334 U.S. 131, 144-48 (1948). Assuming a sufficiently numerous class

of exhibitors, a class action would be advisable. (Here

representation of subclasses of exhibitors could become necessary;

see subdivision (c)(3)(B).)

Subdivision (b)(2). This subdivision is intended to reach

situations where a party has taken action or refused to take action

with respect to a class, and final relief of an injunctive nature

or of a corresponding declaratory nature, settling the legality of

the behavior with respect to the class as a whole, is appropriate.

Declaratory relief "corresponds" to injunctive relief when as a

practical matter it affords injunctive relief or serves as a basis

for later injunctive relief. The subdivision does not extend to

cases in which the appropriate final relief relates exclusively or

predominantly to money damages. Action or inaction is directed to a

class within the meaning of this subdivision even if it has taken

effect or is threatened only as to one or a few members of the

class, provided it is based on grounds which have general

application to the class.

Illustrative are various actions in the civil-rights field where

a party is charged with discriminating unlawfully against a class,

usually one whose members are incapable of specific enumeration.

See Potts v. Flax, 313 F.2d 284 (5th Cir. 1963); Bailey v.

Patterson, 323 F.2d 201 (5th Cir. 1963), cert. denied, 377 U.S. 972

(1964); Brunson v. Board of Trustees of School District No. 1,

Clarendon City, S.C., 311 F.2d 107 (4th Cir. 1962), cert. denied,

373 U.S. 933 (1963); Green v. School Bd. of Roanoke, Va., 304 F.2d

118 (4th Cir. 1962); Orleans Parish School Bd. v. Bush, 242 F.2d

156 (5th Cir. 1957), cert. denied, 354 U.S. 921 (1957); Mannings v.

Board of Public Inst. of Hillsborough County, Fla., 277 F.2d 370

(5th Cir. 1960); Northcross v. Board of Ed. of City of Memphis, 302

F.2d 818 (6th Cir. 1962), cert. denied 370 U.S. 944 (1962); Frasier

v. Board of Trustees of Univ. of N.C., 134 F.Supp. 589 (M.D.N.C.

1955, 3-judge court), aff'd, 350 U.S. 979 (1956). Subdivision

(b)(2) is not limited to civil-rights cases. Thus an action looking

to specific or declaratory relief could be brought by a numerous

class of purchasers, say retailers of a given description, against

a seller alleged to have undertaken to sell to that class at prices

higher than those set for other purchasers, say retailers of

another description, when the applicable law forbids such a pricing

differential. So also a patentee of a machine, charged with selling

or licensing the machine on condition that purchasers or licensees

also purchase or obtain licenses to use an ancillary unpatented

machine, could be sued on a class basis by a numerous group of

purchasers or licensees, or by a numerous group of competing

sellers or licensors of the unpatented machine, to test the

legality of the "tying" condition.

Subdivision (b)(3). In the situations to which this subdivision

relates, class-action treatment is not as clearly called for as in

those described above, but it may nevertheless be convenient and

desirable depending upon the particular facts. Subdivision (b)(3)

encompasses those cases in which a class action would achieve

economies of time, effort, and expense, and promote, uniformity of

decision as to persons similarly situated, without sacrificing

procedural fairness or bringing about other undesirable results.

Cf. Chafee, supra, at 201.

The court is required to find, as a condition of holding that a

class action may be maintained under this subdivision, that the

questions common to the class predominate over the questions

affecting individual members. It is only where this predominance

exists that economies can be achieved by means of the class-action

device. In this view, a fraud perpetrated on numerous persons by

the use of similar misrepresentations may be an appealing situation

for a class action, and it may remain so despite the need, if

liability is found, for separate determination of the damages

suffered by individuals within the class. On the other hand,

although having some common core, a fraud case may be unsuited for

treatment as a class action if there was material variation in the

representation made or in the kinds or degrees of reliance by the

persons to whom they were addressed. See Oppenheimer v. F. J. Young

& Co., Inc., 144 F.2d 387 (2d Cir. 1944); Miller v. National City

Bank of N.Y., 166 F.2d 723 (2d Cir. 1948); and for like problems in

other contexts, see Hughes v. Encyclopaedia Brittanica, 199 F.2d

295 (7th Cir. 1952); Sturgeon v. Great Lakes Steel Corp., 143 F.2d

819 (6th Cir. 1944). A "mass accident" resulting in injuries to

numerous persons is ordinarily not appropriate for a class action

because of the likelihood that significant questions, not only of

damages but of liability and defenses of liability, would be

present, affecting the individuals in different ways. In these

circumstances an action conducted nominally as a class action would

degenerate in practice into multiple lawsuits separately tried. See

Pennsylvania R.R. v. United States, 111 F.Supp. 80 (D.N.J. 1953);

cf. Weinstein, supra, 9 Buffalo L.Rev. at 469. Private damage

claims by numerous individuals arising out of concerted antitrust

violations may or may not involve predominating common questions.

See Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir.

1961), pet. cert. dism., 371 U.S. 801 (1963); cf. Weeks v. Bareco

Oil Co., 125 F.2d 84 (7th Cir. 1941); Kainz v. Anheuser-Busch,

Inc., 194 F.2d 737 (7th Cir. 1952); Hess v. Anderson, Clayton &

Co., 20 F.R.D. 466 (S.D.Calif. 1957).

That common questions predominate is not itself sufficient to

justify a class action under subdivision (b)(3), for another method

of handling the litigious situation may be available which has

greater practical advantages. Thus one or more actions agreed to by

the parties as test or model actions may be preferable to a class

action; or it may prove feasible and preferable to consolidate

actions. Cf. Weinstein, supra, 9 Buffalo L.Rev. at 438-54. Even

when a number of separate actions are proceeding simultaneously,

experience shows that the burdens on the parties and the courts can

sometimes be reduced by arrangements for avoiding repetitious

discovery or the like. Currently the Coordinating Committee on

Multiple Litigation in the United States District Courts (a

subcommittee of the Committee on Trial Practice and Technique of

the Judicial Conference of the United States) is charged with

developing methods for expediting such massive litigation. To

reinforce the point that the court with the aid of the parties

ought to assess the relative advantages of alternative procedures

for handling the total controversy, subdivision (b)(3) requires, as

a further condition of maintaining the class action, that the court

shall find that that procedure is "superior" to the others in the

particular circumstances.

Factors (A)-(D) are listed, non-exhaustively, as pertinent to the

findings. The court is to consider the interests of individual

members of the class in controlling their own litigations and

carrying them on as they see fit. See Weeks v. Bareco Oil Co., 125

F.2d 84, 88-90, 93-94 (7th Cir. 1941) (anti-trust action); see also

Pentland v. Dravo Corp., 152 F.2d 851 (3d Cir. 1945), and Chaffee,

supra, at 273-75, regarding policy of Fair Labor Standards Act of

1938, Sec. 16(b), 29 U.S.C. Sec. 216(b), prior to amendment by

Portal-to-Portal Act of 1947, Sec. 5(a). [The present provisions of

29 U.S.C. Sec. 216(b) are not intended to be affected by Rule 23,

as amended.]

In this connection the court should inform itself of any

litigation actually pending by or against the individuals. The

interests of individuals in conducting separate lawsuits may be so

strong as to call for denial of a class action. On the other hand,

these interests may be theoretic rather than practical; the class

may have a high degree of cohesion and prosecution of the action

through representatives would be quite unobjectionable, or the

amounts at stake for individuals may be so small that separate

suits would be impracticable. The burden that separate suits would

impose on the party opposing the class, or upon the court

calendars, may also fairly be considered. (See the discussion,

under subdivision (c)(2) below, of the right of members to be

excluded from the class upon their request.)

Also pertinent is the question of the desirability of

concentrating the trial of the claims in the particular forum by

means of a class action, in contrast to allowing the claims to be

litigated separately in forums to which they would ordinarily be

brought. Finally, the court should consider the problems of

management which are likely to arise in the conduct of a class

action.

Subdivision (c)(1). In order to give clear definition to the

action, this provision requires the court to determine, as early in

the proceedings as may be practicable, whether an action brought as

a class action is to be so maintained. The determination depends in

each case on satisfaction of the terms of subdivision (a) and the

relevant provisions of subdivision (b).

An order embodying a determination can be conditional; the court

may rule, for example, that a class action may be maintained only

if the representation is improved through intervention of

additional parties of a stated type. A determination once made can

be altered or amended before the decision on the merits if, upon

fuller development of the facts, the original determination appears

unsound. A negative determination means that the action should be

stripped of its character as a class action. See subdivision

(d)(4). Although an action thus becomes a nonclass action, the

court may still be receptive to interventions before the decision

on the merits so that the litigation may cover as many interests as

can be conveniently handled; the questions whether the intervenors

in the nonclass action shall be permitted to claim "ancillary"

jurisdiction or the benefit of the date of the commencement of the

action for purposes of the statute of limitations are to be decided

by reference to the laws governing jurisdiction and limitations as

they apply in particular contexts.

Whether the court should require notice to be given to members of

the class of its intention to make a determination, or of the order

embodying it, is left to the court's discretion under subdivision

(d)(2).

Subdivision (c)(2) makes special provision for class actions

maintained under subdivision (b)(3). As noted in the discussion of

the latter subdivision, the interests of the individuals in

pursuing their own litigations may be so strong here as to warrant

denial of a class action altogether. Even when a class action is

maintained under subdivision (b)(3), this individual interest is

respected. Thus the court is required to direct notice to the

members of the class of the right of each member to be excluded

from the class upon his request. A member who does not request

exclusion may, if he wishes, enter an appearance in the action

through his counsel; whether or not he does so, the judgment in the

action will embrace him.

The notice setting forth the alternatives open to the members of

the class, is to be the best practicable under the circumstances,

and shall include individual notice to the members who can be

identified through reasonable effort. (For further discussion of

this notice, see the statement under subdivision (d)(2) below.)

Subdivision (c)(3). The judgment in a class action maintained as

such to the end will embrace the class, that is, in a class action

under subdivision (b)(1) or (b)(2), those found by the court to be

class members; in a class action under subdivision (b)(3), those to

whom the notice prescribed by subdivision (c)(2) was directed,

excepting those who requested exclusion or who are ultimately found

by the court not to be members of the class. The judgment has this

scope whether it is favorable or unfavorable to the class. In a

(b)(1) or (b)(2) action the judgment "describes" the members of the

class, but need not specify the individual members; in a (b)(3)

action the judgment "specifies" the individual members who have

been identified and described the others.

Compare subdivision (c)(4) as to actions conducted as class

actions only with respect to particular issues. Where the

class-action character of the lawsuit is based solely on the

existence of a "limited fund," the judgment, while extending to all

claims of class members against the fund, has ordinarily left

unaffected the personal claims of nonappearing members against the

debtor. See 3 Moore, supra, par. 23.11[4].

Hitherto, in a few actions conducted as "spurious" class actions

and thus nominally designed to extend only to parties and others

intervening before the determination of liability, courts have held

or intimated that class members might be permitted to intervene

after a decision on the merits favorable to their interests, in

order to secure the benefits of the decision for themselves,

although they would presumably be unaffected by an unfavorable

decision. See, as to the propriety of this so-called "one-way"

intervention in "spurious" actions, the conflicting views expressed

in Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir.

1961), pet. cert. dism., 371 U.S. 801 (1963); York v. Guaranty

Trust Co., 143 F.2d 503, 529 (2d Cir. 1944), rev'd on grounds not

here relevant, 326 U.S. 99 (1945); Pentland v. Dravo Corp., 152

F.2d 851, 856 (3d Cir. 1945); Speed v. Transamerica Corp., 100

F.Supp. 461, 463 (D.Del. 1951); State Wholesale Grocers v. Great

Atl. & Pac. Tea Co., 24 F.R.D. 510 (N.D.Ill. 1959); Alabama Ind.

Serv. Stat. Assn. v. Shell Pet Corp., 28 F.Supp. 386, 390 (N.D.Ala.

1939); Tolliver v. Cudahy Packing Co., 39 F.Supp. 337, 339

(E.D.Tenn. 1941); Kalven & Rosenfield, supra, 8 U. of Chi.L.Rev.

684 (1941); Comment, 53 Nw.U.L.Rev. 627, 632-33 (1958);

Developments in the Law, supra, 71 Harv.L.Rev. at 935; 2 Barron &

Holtzoff, supra, Sec. 568; but cf. Lockwood v. Hercules Powder Co.,

7 F.R.D. 24, 28-29 (W.D.Mo. 1947); Abram v. San Joaquin Cotton Oil

Co., 46 F.Supp. 969, 976-77 (S.D.Calif. 1942); Chaffee, supra, at

280, 285; 3 Moore, supra, par. 23.12, at 3476. Under proposed

subdivision (c)(3), one-way intervention is excluded; the action

will have been early determined to be a class or nonclass action,

and in the former case the judgment, whether or not favorable, will

include the class, as above stated.

Although thus declaring that the judgment in a class action

includes the class, as defined, subdivision (c)(3) does not disturb

the recognized principle that the court conducting the action

cannot predetermine the res judicata effect of the judgment; this

can be tested only in a subsequent action. See Restatement,

Judgments Sec. 86, comment (h), Sec. 116 (1942). The court,

however, in framing the judgment in any suit brought as a class

action, must decide what its extent or coverage shall be, and if

the matter is carefully considered, questions of res judicata are

less likely to be raised at a later time and if raised will be more

satisfactorily answered. See Chafee, supra, at 294; Weinstein,

supra, 9 Buffalo L.Rev. at 460.

Subdivision (c)(4). This provision recognizes that an action may

be maintained as a class action as to particular issues only. For

example, in a fraud or similar case the action may retain its

"class" character only through the adjudication of liability to the

class; the members of the class may thereafter be required to come

in individually and prove the amounts of their respective claims.

Two or more classes may be represented in a single action. Where

a class is found to include subclasses divergent in interest, the

class may be divided correspondingly, and each subclass treated as

a class.

Subdivision (d) is concerned with the fair and efficient conduct

of the action and lists some types of orders which may be

appropriate.

The court should consider how the proceedings are to be arranged

in sequence, and what measures should be taken to simplify the

proof and argument. See subdivision (d)(1). The orders resulting

from this consideration, like the others referred to in subdivision

(d), may be combined with a pretrial order under Rule 16, and are

subject to modification as the case proceeds.

Subdivision (d)(2) sets out a non-exhaustive list of possible

occasions for orders requiring notice to the class. Such notice is

not a novel conception. For example, in "limited fund" cases,

members of the class have been notified to present individual

claims after the basic class decision. Notice has gone to members

of a class so that they might express any opposition to the

representation, see United States v. American Optical Co., 97

F.Supp. 66 (N.D.Ill. 1951), and 1950-51 CCH Trade Cases 64573-74

(par. 62869); cf. Weeks v. Bareco Oil Co., 125 F.2d 84, 94 (7th

Cir. 1941), and notice may encourage interventions to improve the

representation of the class. Cf. Oppenheimer v. F. J. Young & Co.,

144 F.2d 387 (2d Cir. 1944). Notice has been used to poll members

on a proposed modification of a consent decree. See record in Sam

Fox Publishing Co. v. United States, 366 U.S. 683 (1961).

Subdivision (d)(2) does not require notice at any stage, but

rather calls attention to its availability and invokes the court's

discretion. In the degree that there is cohesiveness or unity in

the class and the representation is effective, the need for notice

to the class will tend toward a minimum. These indicators suggest

that notice under subdivision (d)(2) may be particularly useful and

advisable in certain class actions maintained under subdivision

(b)(3), for example, to permit members of the class to object to

the representation. Indeed, under subdivision (c)(2), notice must

be ordered, and is not merely discretionary, to give the members in

a subdivision (b)(3) class action an opportunity to secure

exclusion from the class. This mandatory notice pursuant to

subdivision (c)(2), together with any discretionary notice which

the court may find it advisable to give under subdivision (d)(2),

is designed to fulfill requirements of due process to which the

class action procedure is of course subject. See Hansberry v. Lee,

311 U.S. 32 (1940); Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306 (1950); cf. Dickinson v. Burnham, 197 F.2d 973, 979

(2d Cir. 1952), and studies cited at 979 n. 4; see also All

American Airways, Inc. v. Elderd, 209 F.2d 247, 249 (2d Cir. 1954);

Gart v. Cole, 263 F.2d 244, 248-49 (2d Cir. 1959), cert. denied,

359 U.S. 978 (1959).

Notice to members of the class, whenever employed under amended

Rule 23, should be accommodated to the particular purpose but need

not comply with the formalities for service of process. See Chafee,

supra, at 230-31; Brendle v. Smith, 7 F.R.D. 119 (S.D.N.Y. 1946).

The fact that notice is given at one stage of the action does not

mean that it must be given at subsequent stages. Notice is

available fundamentally "for the protection of the members of the

class or otherwise for the fair conduct of the action" and should

not be used merely as a device for the undesirable solicitation of

claims. See the discussion in Cherner v. Transitron Electronic

Corp., 201 F.Supp. 934 (D.Mass. 1962); Hormel v. United States, 17

F.R.D. 303 (S.D.N.Y. 1955).

In appropriate cases the court should notify interested

government agencies of the pendency of the action or of particular

steps therein.

Subdivision (d)(3) reflects the possibility of conditioning the

maintenance of a class action, e.g., on the strengthening of the

representation, see subdivision (c)(1) above; and recognizes that

the imposition of conditions on intervenors may be required for the

proper and efficient conduct of the action.

As to orders under subdivision (d)(4), see subdivision (c)(1)

above.

Subdivision (e) requires approval of the court, after notice, for

the dismissal or compromise of any class action.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

Subdivision (f). This permissive interlocutory appeal provision

is adopted under the power conferred by 28 U.S.C. Sec. 1292(e).

Appeal from an order granting or denying class certification is

permitted in the sole discretion of the court of appeals. No other

type of Rule 23 order is covered by this provision. The court of

appeals is given unfettered discretion whether to permit the

appeal, akin to the discretion exercised by the Supreme Court in

acting on a petition for certiorari. This discretion suggests an

analogy to the provision in 28 U.S.C. Sec. 1292(b) for permissive

appeal on certification by a district court. Subdivision (f),

however, departs from the Sec. 1292(b) model in two significant

ways. It does not require that the district court certify the

certification ruling for appeal, although the district court often

can assist the parties and court of appeals by offering advice on

the desirability of appeal. And it does not include the potentially

limiting requirements of Sec. 1292(b) that the district court order

"involve[] a controlling question of law as to which there is

substantial ground for difference of opinion and that an immediate

appeal from the order may materially advance the ultimate

termination of the litigation."

The courts of appeals will develop standards for granting review

that reflect the changing areas of uncertainty in class litigation.

The Federal Judicial Center study supports the view that many suits

with class-action allegations present familiar and almost routine

issues that are no more worthy of immediate appeal than many other

interlocutory rulings. Yet several concerns justify expansion of

present opportunities to appeal. An order denying certification may

confront the plaintiff with a situation in which the only sure path

to appellate review is by proceeding to final judgment on the

merits of an individual claim that, standing alone, is far smaller

than the costs of litigation. An order granting certification, on

the other hand, may force a defendant to settle rather than incur

the costs of defending a class action and run the risk of

potentially ruinous liability. These concerns can be met at low

cost by establishing in the court of appeals a discretionary power

to grant interlocutory review in cases that show appeal-worthy

certification issues.

Permission to appeal may be granted or denied on the basis of any

consideration that the court of appeals finds persuasive.

Permission is most likely to be granted when the certification

decision turns on a novel or unsettled question of law, or when, as

a practical matter, the decision on certification is likely

dispositive of the litigation.

The district court, having worked through the certification

decision, often will be able to provide cogent advice on the

factors that bear on the decision whether to permit appeal. This

advice can be particularly valuable if the certification decision

is tentative. Even as to a firm certification decision, a statement

of reasons bearing on the probable benefits and costs of immediate

appeal can help focus the court of appeals decision, and may

persuade the disappointed party that an attempt to appeal would be

fruitless.

The 10-day period for seeking permission to appeal is designed to

reduce the risk that attempted appeals will disrupt continuing

proceedings. It is expected that the courts of appeals will act

quickly in making the preliminary determination whether to permit

appeal. Permission to appeal does not stay trial court proceedings.

A stay should be sought first from the trial court. If the trial

court refuses a stay, its action and any explanation of its views

should weigh heavily with the court of appeals.

Appellate Rule 5 has been modified to establish the procedure for

petitioning for leave to appeal under subdivision (f).

Changes Made after Publication (GAP Report). No changes were made

in the text of Rule 23(f) as published.

Several changes were made in the published Committee Note. (1)

References to 28 U.S.C. Sec. 1292(b) interlocutory appeals were

revised to dispel any implication that the restrictive elements of

Sec. 1292(b) should be read in to Rule 23(f). New emphasis was

placed on court of appeals discretion by making explicit the

analogy to certiorari discretion. (2) Suggestions that the new

procedure is a "modest" expansion of appeal opportunities, to be

applied with "restraint," and that permission "almost always will

be denied when the certification decision turns on case-specific

matters of fact and district court discretion," were deleted. It

was thought better simply to observe that courts of appeals will

develop standards "that reflect the changing areas of uncertainty

in class litigation."

-End-