US (United States) Code. Title 28. Appendix 4

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

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CITE-

28 USC APPENDIX Rule 46 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 46. Exceptions Unnecessary

-STATUTE-

Formal exceptions to rulings or orders of the court are

unnecessary; but for all purposes for which an exception has

heretofore been necessary it is sufficient that a party, at the

time the ruling or order of the court is made or sought, makes

known to the court the action which the party desires the court to

take or the party's objection to the action of the court and the

grounds therefor; and, if a party has no opportunity to object to a

ruling or order at the time it is made, the absence of an objection

does not thereafter prejudice the party.

-SOURCE-

(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Abolition of formal exceptions is often provided by statute. See

Ill.Rev.Stat. (1937), ch. 110, Sec. 204; Neb.Comp.Stat. (1929) Sec.

20-1139; N.M.Stat.Ann. (Courtright, 1929) Sec. 105-830; 2

N.D.Comp.Laws Ann. (1913) Sec. 7653; Ohio Code Ann. (Throckmorton,

1936) Sec. 11560; 1 S.D.Comp.Laws (1929) Sec. 2542; Utah

Rev.Stat.Ann. (1933) Secs. 104-39-2, 104-24-18; Va.Rules of Court,

Rule 22, 163 Va. v, xii (1935); Wis.Stat. (1935) Sec. 270.39.

Compare N.Y.C.P.A. (1937) Secs. 583, 445, and 446, all as amended

by L. 1936, ch. 915. Rule 51 deals with objections to the court's

instructions to the jury.

U.S.C., Title 28, [former] Secs. 776 (Bill of exceptions;

authentication; signing of by judge) and [former] 875 (Review of

findings in cases tried without a jury) are superseded insofar as

they provide for formal exceptions, and a bill of exceptions.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 47 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 47. Selection of Jurors

-STATUTE-

(a) Examination of Jurors. The court may permit the parties or

their attorneys to conduct the examination of prospective jurors or

may itself conduct the examination. In the latter event, the court

shall permit the parties or their attorneys to supplement the

examination by such further inquiry as it deems proper or shall

itself submit to the prospective jurors such additional questions

of the parties or their attorneys as it deems proper.

(b) Peremptory Challenges. The court shall allow the number of

peremptory challenges provided by 28 U.S.C. Sec. 1870.

(c) Excuse. The court may for good cause excuse a juror from

service during trial or deliberation.

-SOURCE-

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1991, eff.

Dec. 1, 1991.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). This permits a practice found very

useful by Federal trial judges. For an example of a state practice

in which the examination by the court is supplemented by further

inquiry by counsel, see Rule 27 of the Code of Rules for the

District Courts of Minnesota, 186 Minn. xxxiii (1932), 3 Minn.Stat.

(Mason, supp. 1936) Appendix, 4, p. 1062.

Note to Subdivision (b). The provision for an alternate juror is

one often found in modern state codes. See N.C.Code (1935) Sec.

2330(a); Ohio Gen.Code Ann. (Page, Supp. 1926-1935) Sec. 11419-47;

Pa.Stat.Ann. (Purdon, Supp. 1936) Title 17, Sec. 1153; compare

U.S.C., Title 28, [former] Sec. 417a (Alternate jurors in criminal

trials); 1 N.J.Rev.Stat. (1937) 2:91A-1, 2:91A-2, 2:91A-3.

Provisions for qualifying, drawing, and challenging of jurors are

found in U.S.C., Title 28:

Sec. 411 [now 1861] (Qualifications and exemptions)

Sec. 412 [now 1864] (Manner of drawing)

Sec. 413 [now 1865] (Apportioned in district)

Sec. 415 [see 1862] (Not disqualified because of race or color)

Sec. 416 [now 1867] (Venire; service and return)

Sec. 417 [now 1866] (Talesmen for petit jurors)

Sec. 418 [now 1866] (Special juries)

Sec. 423 [now 1869] (Jurors not to serve more than once a year)

Sec. 424 [now 1870] (Challenges)

and D.C. Code (1930) Title 18, Secs. 341-360 (Juries and Jury

Commission) and Title 6, Sec. 366 (Peremptory challenges.

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

The revision of this subdivision brings it into line with the

amendment of Rule 24(c) of the Federal Rules of Criminal Procedure.

That rule previously allowed four alternate jurors, as contrasted

with the two allowed in civil cases, and the amendments increase

the number of a maximum of six in all cases. The Advisory

Committee's Note to amended Criminal Rule 24(c) points to

experience demonstrating that four alternates may not be enough in

some lengthy criminal trials; and the same may be said of civil

trials. The Note adds:

"The words 'or are found to be' are added to the second sentence

to make clear that an alternate juror may be called in the

situation where it is first discovered during the trial that a

juror was unable or disqualified to preform his duties at the time

he was sworn."

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

Subdivision (b). The former provision for alternate jurors is

stricken and the institution of the alternate juror abolished.

The former rule reflected the long-standing assumption that a

jury would consist of exactly twelve members. It provided for

additional jurors to be used as substitutes for jurors who are for

any reason excused or disqualified from service after the

commencement of the trial. Additional jurors were traditionally

designated at the outset of the trial, and excused at the close of

the evidence if they had not been promoted to full service on

account of the elimination of one of the original jurors.

The use of alternate jurors has been a source of dissatisfaction

with the jury system because of the burden it places on alternates

who are required to listen to the evidence but denied the

satisfaction of participating in its evaluation.

Subdivision (c). This provision makes it clear that the court may

in appropriate circumstances excuse a juror during the jury

deliberations without causing a mistrial. Sickness, family

emergency or juror misconduct that might occasion a mistrial are

examples of appropriate grounds for excusing a juror. It is not

grounds for the dismissal of a juror that the juror refuses to join

with fellow jurors in reaching a unanimous verdict.

-End-

-CITE-

28 USC APPENDIX Rule 48 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 48. Number of Jurors - Participation in Verdict

-STATUTE-

The court shall seat a jury of not fewer than six and not more

than twelve members and all jurors shall participate in the verdict

unless excused from service by the court pursuant to Rule 47(c).

Unless the parties otherwise stipulate, (1) the verdict shall be

unanimous and (2) no verdict shall be taken from a jury reduced in

size to fewer than six members.

-SOURCE-

(As amended Apr. 30, 1991, eff. Dec. 1, 1991.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

For provisions in state codes, compare Utah Rev.Stat.Ann. (1933)

Sec. 48-O-5 (In civil cases parties may agree in open court on

lesser number of jurors); 2 Wash.Rev.Stat.Ann. (Remington, 1932)

Sec. 323 (Parties may consent to any number of jurors not less than

three).

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

The former rule was rendered obsolete by the adoption in many

districts of local rules establishing six as the standard size for

a civil jury.

It appears that the minimum size of a jury consistent with the

Seventh Amendment is six. Cf. Ballew v. Georgia, 435 U.S. 223

(1978) (holding that a conviction based on a jury of less than six

is a denial of due process of law). If the parties agree to trial

before a smaller jury, a verdict can be taken, but the parties

should not other than in exceptional circumstances be encouraged to

waive the right to a jury of six, not only because of the

constitutional stature of the right, but also because smaller

juries are more erratic and less effective in serving to distribute

responsibility for the exercise of judicial power.

Because the institution of the alternate juror has been abolished

by the proposed revision of Rule 47, it will ordinarily be prudent

and necessary, in order to provide for sickness or disability among

jurors, to seat more than six jurors. The use of jurors in excess

of six increases the representativeness of the jury and harms no

interest of a party. Ray v. Parkside Surgery Center, 13 F.R. Serv.

585 (6th cir. 1989).

If the court takes the precaution of seating a jury larger than

six, an illness occurring during the deliberation period will not

result in a mistrial, as it did formerly, because all seated jurors

will participate in the verdict and a sufficient number will remain

to render a unanimous verdict of six or more.

In exceptional circumstances, as where a jury suffers depletions

during trial and deliberation that are greater than can reasonably

be expected, the parties may agree to be bound by a verdict

rendered by fewer than six jurors. The court should not, however,

rely upon the availability of such an agreement, for the use of

juries smaller than six is problematic for reasons fully explained

in Ballew v. Georgia, supra.

-End-

-CITE-

28 USC APPENDIX Rule 49 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 49. Special Verdicts and Interrogatories

-STATUTE-

(a) Special Verdicts. The court may require a jury to return only

a special verdict in the form of a special written finding upon

each issue of fact. In that event the court may submit to the jury

written questions susceptible of categorical or other brief answer

or may submit written forms of the several special findings which

might properly be made under the pleadings and evidence; or it may

use such other method of submitting the issues and requiring the

written findings thereon as it deems most appropriate. The court

shall give to the jury such explanation and instruction concerning

the matter thus submitted as may be necessary to enable the jury to

make its findings upon each issue. If in so doing the court omits

any issue of fact raised by the pleadings or by the evidence, each

party waives the right to a trial by jury of the issue so omitted

unless before the jury retires the party demands its submission to

the jury. As to an issue omitted without such demand the court may

make a finding; or, if it fails to do so, it shall be deemed to

have made a finding in accord with the judgment on the special

verdict.

(b) General Verdict Accompanied by Answer to Interrogatories. The

court may submit to the jury, together with appropriate forms for a

general verdict, written interrogatories upon one or more issues of

fact the decision of which is necessary to a verdict. The court

shall give such explanation or instruction as may be necessary to

enable the jury both to make answers to the interrogatories and to

render a general verdict, and the court shall direct the jury both

to make written answers and to render a general verdict. When the

general verdict and the answers are harmonious, the appropriate

judgment upon the verdict and answers shall be entered pursuant to

Rule 58. When the answers are consistent with each other but one or

more is inconsistent with the general verdict, judgment may be

entered pursuant to Rule 58 in accordance with the answers,

notwithstanding the general verdict, or the court may return the

jury for further consideration of its answers and verdict or may

order a new trial. When the answers are inconsistent with each

other and one or more is likewise inconsistent with the general

verdict, judgment shall not be entered, but the court shall return

the jury for further consideration of its answers and verdict or

shall order a new trial.

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff.

Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

The Federal courts are not bound to follow state statutes

authorizing or requiring the court to ask a jury to find a special

verdict or to answer interrogatories. Victor American Fuel Co. v.

Peccarich, 209 Fed. 568 (C.C.A.8th, 1913) cert. den. 232 U.S. 727

(1914); Spokane and I. E. R. Co. v. Campbell, 217 Fed. 518

(C.C.A.9th, 1914), affd. 241 U.S. 497 (1916); Simkins, Federal

Practice (1934) Sec. 186. The power of a territory to adopt by

statute the practice under Subdivision (b) has been sustained.

Walker v. New Mexico and Southern Pacific R. R., 165 U.S. 593

(1897); Southwestern Brewery and Ice Co. v. Schmidt, 226 U.S. 162

(1912).

Compare Wis.Stat. (1935) Secs. 270.27, 270.28 and 270.30 Green, A

New Development in Jury Trial (1927), 13 A.B.A.J. 715; Morgan, A

Brief History of Special Verdicts and Special Interrogatories

(1923), 32 Yale L.J. 575.

The provisions of U.S.C., Title 28, [former] Sec. 400(3)

(Declaratory judgments authorized; procedure) permitting the

submission of issues of fact to a jury are covered by this rule.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This amendment conforms to the amendment of Rule 58. See the

Advisory Committee's Note to Rule 58, as amended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 50 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 50. Judgment as a Matter of Law in Jury Trials; Alternative

Motion for New Trial; Conditional Rulings

-STATUTE-

(a) Judgment as a Matter of Law.

(1) If during a trial by jury a party has been fully heard on

an issue and there is no legally sufficient evidentiary basis for

a reasonable jury to find for that party on that issue, the court

may determine the issue against that party and may grant a motion

for judgment as a matter of law against that party with respect

to a claim or defense that cannot under the controlling law be

maintained or defeated without a favorable finding on that issue.

(2) Motions for judgment as a matter of law may be made at any

time before submission of the case to the jury. Such a motion

shall specify the judgment sought and the law and the facts on

which the moving party is entitled to the judgment.

(b) Renewing Motion for Judgment After Trial; Alternative Motion

for New Trial. If, for any reason, the court does not grant a

motion for judgment as a matter of law made at the close of all the

evidence, the court is considered to have submitted the action to

the jury subject to the court's later deciding the legal questions

raised by the motion. The movant may renew its request for judgment

as a matter of law by filing a motion no later than 10 days after

entry of judgment - and may alternatively request a new trial or

join a motion for a new trial under Rule 59. In ruling on a renewed

motion, the court may:

(1) if a verdict was returned:

(A) allow the judgment to stand,

(B) order a new trial, or

(C) direct entry of judgment as a matter of law; or

(2) if no verdict was returned:

(A) order a new trial, or

(B) direct entry of judgment as a matter of law.

(c) Granting Renewed Motion for Judgment as a Matter of Law;

Conditional Rulings; New Trial Motion.

(1) If the renewed motion for judgment as a matter of law is

granted, the court shall also rule on the motion for a new trial,

if any, by determining whether it should be granted if the

judgment is thereafter vacated or reversed, and shall specify the

grounds for granting or denying the motion for the new trial. If

the motion for a new trial is thus conditionally granted, the

order thereon does not affect the finality of the judgment. In

case the motion for a new trial has been conditionally granted

and the judgment is reversed on appeal, the new trial shall

proceed unless the appellate court has otherwise ordered. In case

the motion for a new trial has been conditionally denied, the

appellee on appeal may assert error in that denial; and if the

judgment is reversed on appeal, subsequent proceedings shall be

in accordance with the order of the appellate court.

(2) Any motion for a new trial under Rule 59 by a party against

whom judgment as a matter of law is rendered shall be filed no

later than 10 days after entry of the judgment.

(d) Same: Denial of Motion for Judgment as a Matter of Law. If

the motion for judgment as a matter of law is denied, the party who

prevailed on that motion may, as appellee, assert grounds entitling

the party to a new trial in the event the appellate court concludes

that the trial court erred in denying the motion for judgment. If

the appellate court reverses the judgment, nothing in this rule

precludes it from determining that the appellee is entitled to a

new trial, or from directing the trial court to determine whether a

new trial shall be granted.

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff.

Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff.

Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). The present federal rule is changed to

the extent that the formality of an express reservation of rights

against waiver is no longer necessary. See Sampliner v. Motion

Picture Patents Co., 254 U.S. 233 (1920); Union Indemnity Co. v.

United States, 74 F.(2d) 645 (C.C.A.6th, 1935). The requirement

that specific grounds for the motion for a directed verdict must be

stated settles a conflict in the federal cases. See Simkins,

Federal Practice (1934) Sec. 189.

Note to Subdivision (b). For comparable state practice upheld

under the conformity act, see Baltimore and Carolina Line v.

Redman, 295 U.S. 654 (1935); compare Slocum v. New York Life Ins.

Co., 228 U.S. 364 (1913).

See Northern Ry. Co. v. Page, 274 U.S. 65 (1927), following the

Massachusetts practice of alternative verdicts, explained in

Thorndike, Trial by Jury in United States Courts, 26 Harv.L.Rev.

732 (1913). See also Thayer, Judicial Administration, 63 U. of

Pa.L.Rev. 585, 600-601, and note 32 (1915); Scott, Trial by Jury

and the Reform of Civil Procedure, 31 Harv.L.Rev. 669, 685 (1918);

Comment, 34 Mich.L.Rev. 93, 98 (1935).

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

Subdivision (a). The practice, after the court has granted a

motion for a directed verdict, of requiring the jury to express

assent to a verdict they did not reach by their own deliberations

serves no useful purpose and may give offense to the members of the

jury. See 2B Barron & Holtzoff, Federal Practice and Procedure Sec.

1072, at 367 (Wright ed. 1961); Blume, Origin and Development of

the Directed Verdict, 48 Mich.L.Rev. 555, 582-85, 589-90 (1950).

The final sentence of the subdivision, added by amendment, provides

that the court's order granting a motion for a directed verdict is

effective in itself, and that no action need be taken by the

foreman or other members of the jury. See Ariz.R.Civ.P. 50(c); cf.

Fed.R.Crim.P. 29 (a). No change is intended in the standard to be

applied in deciding the motion. To assure this interpretation, and

in the interest of simplicity, the traditional term, "directed

verdict," is retained.

Subdivision (b). A motion for judgment notwithstanding the

verdict will not lie unless it was preceded by a motion for a

directed verdict made at the close of all the evidence.

The amendment of the second sentence of this subdivision sets the

time limit for making the motion for judgment n.o.v. at 10 days

after the entry of judgment, rather than 10 days after the

reception of the verdict. Thus the time provision is made

consistent with that contained in Rule 59(b) (time for motion for

new trial) and Rule 52(b) (time for motion to amend findings by the

court).

Subdivision (c) deals with the situation where a party joins a

motion for a new trial with his motion for judgment n.o.v. or prays

for a new trial in the alternative, and the motion for judgment

n.o.v. is granted. The procedure to be followed in making rulings

on the motion for the new trial, and the consequences of the

rulings thereon, were partly set out in Montgomery Ward & Co. v.

Duncan, 311 U.S. 243, 253, 61 S.Ct. 189, 85 L.Ed. 147 (1940), and

have been further elaborated in later cases. See Cone v. West

Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849

(1947); Globe Liquor Co., Inc. v. San Roman, 332 U.S. 571, 68 S.Ct.

246, 92 L.Ed. 177 (1948); Fountain v. Filson, 336 U.S. 681, 69

S.Ct. 754, 93 L.Ed. 971 (1949); Johnson v. New York, N.H. & H.R.R.

Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77 (1952). However, courts

as well as counsel have often misunderstood the procedure, and it

will be helpful to summarize the proper practice in the text of the

rule. The amendments do not alter the effects of a jury verdict or

the scope of appellate review.

In the situation mentioned, subdivision (c)(1) requires that the

court make a "conditional" ruling on the new-trial motion, i.e., a

ruling which goes on the assumption that the motion for judgment

n.o.v. was erroneously granted and will be reversed or vacated; and

the court is required to state its grounds for the conditional

ruling. Subdivision (c)(1) then spells out the consequences of a

reversal of the judgment in the light of the conditional ruling on

the new-trial motion.

If the motion for new trial has been conditionally granted, and

the judgment is reversed, "the new trial shall proceed unless the

appellate court has otherwise ordered." The party against whom the

judgment n.o.v. was entered below may, as appellant, besides

seeking to overthrow that judgment, also attack the conditional

grant of the new trial. And the appellate court, if it reverses the

judgment n.o.v., may in an appropriate case also reverse the

conditional grant of the new trial and direct that judgment be

entered on the verdict. See Bailey v. Slentz, 189 F.2d 406 (10th

Cir. 1951); Moist Cold Refrigerator Co. v. Lou Johnson Co., 249

F.2d 246 (9th Cir. 1957), cert. denied, 356 U.S. 968, 78 S.Ct.

1008, 2 L.Ed.2d 1074 (1958); Peters v. Smith, 221 F.2d 721 (3d

Cir.1955); Dailey v. Timmer, 292 F.2d 824 (3d Cir. 1961),

explaining Lind v. Schenley Industries, Inc., 278 F.2d 79 (3d

Cir.), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60

(1960); Cox v. Pennsylvania R.R., 120 A.2d 214 (D.C.Mun.Ct.App.

1956); 3 Barron & Holtzoff, Federal Practice and Procedure Sec.

1302.1 at 346-47 (Wright ed. 1958); 6 Moore's Federal Practice

¶ 59.16 at 3915 n. 8a (2d ed. 1954).

If the motion for a new trial has been conditionally denied, and

the judgment is reversed, "subsequent proceedings shall be in

accordance with the order of the appellate court." The party in

whose favor judgment n.o.v. was entered below may, as appellee,

besides seeking to uphold that judgment, also urge on the appellate

court that the trial court committed error in conditionally denying

the new trial. The appellee may assert this error in his brief,

without taking a cross-appeal. Cf. Patterson v. Pennsylvania R.R.,

238 F.2d 645, 650 (6th Cir. 1956); Hughes v. St. Louis Nat. L.

Baseball Club, Inc., 359 Mo. 993, 997, 224 S.W.2d 989, 992 (1949).

If the appellate court concludes that the judgment cannot stand,

but accepts the appellee's contention that there was error in the

conditional denial of the new trial, it may order a new trial in

lieu of directing the entry of judgment upon the verdict.

Subdivision (c)(2), which also deals with the situation where the

trial court has granted the motion for judgment n.o.v., states that

the verdict-winner may apply to the trial court for a new trial

pursuant to Rule 59 after the judgment n.o.v. has been entered

against him. In arguing to the trial court in opposition to the

motion for judgment n.o.v., the verdict-winner may, and often will,

contend that he is entitled, at the least, to a new trial, and the

court has a range of discretion to grant a new trial or (where

plaintiff won the verdict) to order a dismissal of the action

without prejudice instead of granting judgment n.o.v. See Cone v.

West Virginia Pulp & Paper Co., supra, 330 U.S. at 217, 218 67

S.Ct. at 755, 756, 91 L.Ed. 849. Subdivision (c)(2) is a reminder

that the verdict-winner is entitled, even after entry of judgment

n.o.v. against him, to move for a new trial in the usual course. If

in these circumstances the motion is granted, the judgment is

superseded.

In some unusual circumstances, however, the grant of the

new-trial motion may be only conditional, and the judgment will not

be superseded. See the situation in Tribble v. Bruin, 279 F.2d 424

(4th Cir. 1960) (upon a verdict for plaintiff, defendant moves for

and obtains judgment n.o.v.; plaintiff moves for a new trial on the

ground of inadequate damages; trial court might properly have

granted plaintiff's motion, conditional upon reversal of the

judgment n.o.v.).

Even if the verdict-winner makes no motion for a new trial, he is

entitled upon his appeal from the judgment n.o.v. not only to urge

that that judgment should be reversed and judgment entered upon the

verdict, but that errors were committed during the trial which at

the least entitle him to a new trial.

Subdivision (d) deals with the situation where judgment has been

entered on the jury verdict, the motion for judgment n.o.v. and any

motion for a new trial having been denied by the trial court. The

verdict-winner, as appellee, besides seeking to uphold the

judgment, may urge upon the appellate court that in case the trial

court is found to have erred in entering judgment on the verdict,

there are grounds for granting him a new trial instead of directing

the entry of judgment for his opponent. In appropriate cases the

appellate court is not precluded from itself directing that a new

trial be had. See Weade v. Dichmann, Wright & Pugh, Inc., 337 U.S.

801, 69 S.Ct. 1326, 93 L.Ed. 1704 (1949). Nor is it precluded in

proper cases from remanding the case for a determination by the

trial court as to whether a new trial should be granted. The latter

course is advisable where the grounds urged are suitable for the

exercise of trial court discretion.

Subdivision (d) does not attempt a regulation of all aspects of

the procedure where the motion for judgment n.o.v. and any

accompanying motion for a new trial are denied, since the problems

have not been fully canvassed in the decisions and the procedure is

in some respects still in a formative stage. It is, however,

designed to give guidance on certain important features of the

practice.

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 (a). The revision of this subdivision aims to

facilitate the exercise by the court of its responsibility to

assure the fidelity of its judgment to the controlling law, a

responsibility imposed by the Due Process Clause of the Fifth

Amendment. Cf. Galloway v. United States, 319 U.S. 372 (1943).

The revision abandons the familiar terminology of direction of

verdict for several reasons. The term is misleading as a

description of the relationship between judge and jury. It is also

freighted with anachronisms some of which are the subject of the

text of former subdivision (a) of this rule that is deleted in this

revision. Thus, it should not be necessary to state in the text of

this rule that a motion made pursuant to it is not a waiver of the

right to jury trial, and only the antiquities of directed verdict

practice suggest that it might have been. The term "judgment as a

matter of law" is an almost equally familiar term and appears in

the text of Rule 56; its use in Rule 50 calls attention to the

relationship between the two rules. Finally, the change enables the

rule to refer to preverdict and post-verdict motions with a

terminology that does not conceal the common identity of two

motions made at different times in the proceeding.

If a motion is denominated a motion for directed verdict or for

judgment notwithstanding the verdict, the party's error is merely

formal. Such a motion should be treated as a motion for judgment as

a matter of law in accordance with this rule.

Paragraph (a)(1) articulates the standard for the granting of a

motion for judgment as a matter of law. It effects no change in the

existing standard. That existing standard was not expressed in the

former rule, but was articulated in long-standing case law. See

generally Cooper, Directions for Directed Verdicts: A Compass for

Federal Courts, 55 MINN. L. REV. 903 (1971). The expressed standard

makes clear that action taken under the rule is a performance of

the court's duty to assure enforcement of the controlling law and

is not an intrusion on any responsibility for factual

determinations conferred on the jury by the Seventh Amendment or

any other provision of federal law. Because this standard is also

used as a reference point for entry of summary judgment under

56(a), it serves to link the two related provisions.

The revision authorizes the court to perform its duty to enter

judgment as a matter of law at any time during the trial, as soon

as it is apparent that either party is unable to carry a burden of

proof that is essential to that party's case. Thus, the second

sentence of paragraph (a)(1) authorizes the court to consider a

motion for judgment as a matter of law as soon as a party has

completed a presentation on a fact essential to that party's case.

Such early action is appropriate when economy and expedition will

be served. In no event, however, should the court enter judgment

against a party who has not been apprised of the materiality of the

dispositive fact and been afforded an opportunity to present any

available evidence bearing on that fact. In order further to

facilitate the exercise of the authority provided by this rule,

Rule 16 is also revised to encourage the court to schedule an order

of trial that proceeds first with a presentation on an issue that

is likely to be dispositive, if such an issue is identified in the

course of pretrial. Such scheduling can be appropriate where the

court is uncertain whether favorable action should be taken under

Rule 56. Thus, the revision affords the court the alternative of

denying a motion for summary judgment while scheduling a separate

trial of the issue under Rule 42(b) or scheduling the trial to

begin with a presentation on that essential fact which the opposing

party seems unlikely to be able to maintain.

Paragraph (a)(2) retains the requirement that a motion for

judgment be made prior to the close of the trial, subject to

renewal after a jury verdict has been rendered. The purpose of this

requirement is to assure the responding party an opportunity to

cure any deficiency in that party's proof that may have been

overlooked until called to the party's attention by a late motion

for judgment. Cf. Farley Transp. Co. v. Santa Fe Trail Transp. Co.,

786 F.2d 1342 (9th Cir. 1986) ("If the moving party is then

permitted to make a later attack on the evidence through a motion

for judgment notwithstanding the verdict or an appeal, the opposing

party may be prejudiced by having lost the opportunity to present

additional evidence before the case was submitted to the jury");

Benson v. Allphin, 786 F.2d 268 (7th Cir. 1986) ("the motion for

directed verdict at the close of all the evidence provides the

nonmovant an opportunity to do what he can to remedy the

deficiencies in his case . . .); McLaughlin v. The Fellows Gear

Shaper Co., 4 F.R.Serv. 3d 607 (3d Cir. 1986) (per Adams, J.,

dissenting: "This Rule serves important practical purposes in

ensuring that neither party is precluded from presenting the most

persuasive case possible and in preventing unfair surprise after a

matter has been submitted to the jury"). At one time, this

requirement was held to be of constitutional stature, being

compelled by the Seventh Amendment. Cf. Slocum v. New York

Insurance Co., 228 U.S. 364 (1913). But cf. Baltimore & Carolina

Line v. Redman, 295 U.S. 654 (1935).

The second sentence of paragraph (a)(2) does impose a requirement

that the moving party articulate the basis on which a judgment as a

matter of law might be rendered. The articulation is necessary to

achieve the purpose of the requirement that the motion be made

before the case is submitted to the jury, so that the responding

party may seek to correct any overlooked deficiencies in the proof.

The revision thus alters the result in cases in which courts have

used various techniques to avoid the requirement that a motion for

a directed verdict be made as a predicate to a motion for judgment

notwithstanding the verdict. E.g., Benson v. Allphin, 788 F.2d 268

(7th cir. 1986) ("this circuit has allowed something less than a

formal motion for directed verdict to preserve a party's right to

move for judgment notwithstanding the verdict"). See generally 9

WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE Sec. 2537 (1971 and

Supp.). The information required with the motion may be supplied by

explicit reference to materials and argument previously supplied to

the court.

This subdivision deals only with the entry of judgment and not

with the resolution of particular factual issues as a matter of

law. The court may, as before, properly refuse to instruct a jury

to decide an issue if a reasonable jury could on the evidence

presented decide that issue in only one way.

Subdivision (b). This provision retains the concept of the former

rule that the post-verdict motion is a renewal of an earlier motion

made at the close of the evidence. One purpose of this concept was

to avoid any question arising under the Seventh Amendment.

Montgomery Ward & Co. v. Duncan, 311 U.S. 243 (1940). It remains

useful as a means of defining the appropriate issue posed by the

post-verdict motion. A post-trial motion for judgment can be

granted only on grounds advanced in the pre-verdict motion. E.g.,

Kutner Buick, Inc. v. American Motors Corp., 848 F.2d 614 (3d cir.

1989).

Often it appears to the court or to the moving party that a

motion for judgment as a matter of law made at the close of the

evidence should be reserved for a post-verdict decision. This is so

because a jury verdict for the moving party moots the issue and

because a pre-verdict ruling gambles that a reversal may result in

a new trial that might have been avoided. For these reasons, the

court may often wisely decline to rule on a motion for judgment as

a matter of law made at the close of the evidence, and it is not

inappropriate for the moving party to suggest such a postponement

of the ruling until after the verdict has been rendered.

In ruling on such a motion, the court should disregard any jury

determination for which there is no legally sufficient evidentiary

basis enabling a reasonable jury to make it. The court may then

decide such issues as a matter of law and enter judgment if all

other material issues have been decided by the jury on the basis of

legally sufficient evidence, or by the court as a matter of law.

The revised rule is intended for use in this manner with Rule 49.

Thus, the court may combine facts established as a matter of law

either before trial under Rule 56 or at trial on the basis of the

evidence presented with other facts determined by the jury under

instructions provided under Rule 49 to support a proper judgment

under this rule.

This provision also retains the former requirement that a

post-trial motion under the rule must be made within 10 days after

entry of a contrary judgment. The renewed motion must be served and

filed as provided by Rule 5. A purpose of this requirement is to

meet the requirements of F.R.App.P. 4(a)(4).

Subdivision (c). Revision of this subdivision conforms the

language to the change in diction set forth in subdivision (a) of

this revised rule.

Subdivision (d). Revision of this subdivision conforms the

language to that of the previous subdivisions.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

This technical amendment corrects an ambiguity in the text of the

1991 revision of the rule, which, as indicated in the Notes, was

not intended to change the existing standards under which "directed

verdicts" could be granted. This amendment makes clear that

judgments as a matter of law in jury trials may be entered against

both plaintiffs and defendants and with respect to issues or

defenses that may not be wholly dispositive of a claim or defense.

NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT

The only change, other than stylistic, intended by this revision

is to prescribe a uniform explicit time for filing of post-judgment

motions under this rule - no later than 10 days after entry of the

judgment. Previously, there was an inconsistency in the wording of

Rules 50, 52, and 59 with respect to whether certain post-judgment

motions had to be filed, or merely served, during that period. This

inconsistency caused special problems when motions for a new trial

were joined with other post-judgment motions. These motions affect

the finality of the judgment, a matter often of importance to third

persons as well as the parties and the court. The Committee

believes that each of these rules should be revised to require

filing before end of the 10-day period. Filing is an event that can

be determined with certainty from court records. The phrase "no

later than" is used - rather than "within" - to include

post-judgment motions that sometimes are filed before actual entry

of the judgment by the clerk. It should be noted that under Rule

6(a) Saturdays, Sundays, and legal holidays are excluded in

measuring the 10-day period, and that under Rule 5 the motions when

filed are to contain a certificate of service on other parties.

-End-

-CITE-

28 USC APPENDIX Rule 51 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 51. Instructions to Jury: Objection

-STATUTE-

At the close of the evidence or at such earlier time during the

trial as the court reasonably directs, any party may file written

requests that the court instruct the jury on the law as set forth

in the requests. The court shall inform counsel of its proposed

action upon the requests prior to their arguments to the jury. The

court, at its election, may instruct the jury before or after

argument, or both. No party may assign as error the giving or the

failure to give an instruction unless that party objects thereto

before the jury retires to consider its verdict, stating distinctly

the matter objected to and the grounds of the objection.

Opportunity shall be given to make the objection out of the hearing

of the jury.

-SOURCE-

(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Supreme Court Rule 8 requires exceptions to the charge of the

court to the jury which shall distinctly state the several matters

of law in the charge to which exception is taken. Similar

provisions appear in the rules of the various Circuit Courts of

Appeals.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

Although Rule 51 in its present form specifies that the court

shall instruct the jury only after the arguments of the parties are

completed, in some districts (typically those in states where the

practice is otherwise) it is common for the parties to stipulate to

instruction before the arguments. The purpose of the amendment is

to give the court discretion to instruct the jury either before or

after argument. Thus, the rule as revised will permit resort to the

long-standing federal practice or to an alternative procedure,

which has been praised because it gives counsel the opportunity to

explain the instructions, argue their application to the facts and

thereby give the jury the maximum assistance in determining the

issues and arriving at a good verdict on the law and the evidence.

As an ancillary benefit, this approach aids counsel by supplying a

natural outline so that arguments may be directed to the essential

fact issues which the jury must decide. See generally Raymond,

Merits and Demerits of the Missouri System of Instructing Juries, 5

St. Louis U.L.J. 317 (1959). Moreover, if the court instructs

before an argument, counsel then know the precise words the court

has chosen and need not speculate as to the words the court will

later use in its instructions. Finally, by instructing ahead of

argument the court has the attention of the jurors when they are

fresh and can given their full attention to the court's

instructions. It is more difficult to hold the attention of jurors

after lengthy arguments.

-End-

-CITE-

28 USC APPENDIX Rule 52 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 52. Findings by the Court; Judgment on Partial Findings

-STATUTE-

(a) Effect. In all actions tried upon the facts without a jury or

with an advisory jury, the court shall find the facts specially and

state separately its conclusions of law thereon, and judgment shall

be entered pursuant to Rule 58; and in granting or refusing

interlocutory injunctions the court shall similarly set forth the

findings of fact and conclusions of law which constitute the

grounds of its action. Requests for findings are not necessary for

purposes of review. Findings of fact, whether based on oral or

documentary evidence, shall not be set aside unless clearly

erroneous, and due regard shall be given to the opportunity of the

trial court to judge of the credibility of the witnesses. The

findings of a master, to the extent that the court adopts them,

shall be considered as the findings of the court. It will be

sufficient if the findings of fact and conclusions of law are

stated orally and recorded in open court following the close of the

evidence or appear in an opinion or memorandum of decision filed by

the court. Findings of fact and conclusions of law are unnecessary

on decisions of motions under Rules 12 or 56 or any other motion

except as provided in subdivision (c) of this rule.

(b) Amendment. On a party's motion filed no later than 10 days

after entry of judgment, the court may amend its findings - or make

additional findings - and may amend the judgment accordingly. The

motion may accompany a motion for a new trial under Rule 59. When

findings of fact are made in actions tried without a jury, the

sufficiency of the evidence supporting the findings may be later

questioned whether or not in the district court the party raising

the question objected to the findings, moved to amend them, or

moved for partial findings.

(c) Judgment on Partial Findings. If during a trial without a

jury a party has been fully heard on an issue and the court finds

against the party on that issue, the court may enter judgment as a

matter of law against that party with respect to a claim or defense

that cannot under the controlling law be maintained or defeated

without a favorable finding on that issue, or the court may decline

to render any judgment until the close of all the evidence. Such a

judgment shall be supported by findings of fact and conclusions of

law as required by subdivision (a) of this rule.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.

July 1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff.

Aug. 1, 1985; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff.

Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

See [former] Equity Rule 70(!1/2), as amended Nov. 25, 1935

(Findings of Fact and Conclusions of Law), and U.S.C., Title 28,

[former] Sec. 764 (Opinion, findings, and conclusions in action

against United States) which are substantially continued in this

rule. The provisions of U.S.C., Title 28, [former] Secs. 773 (Trial

of issues of fact; by court) and [former] 875 (Review in cases

tried without a jury) are superseded insofar as they provide a

different method of finding facts and a different method of

appellate review. The rule stated in the third sentence of

Subdivision (a) accords with the decisions on the scope of the

review in modern federal equity practice. It is applicable to all

classes of findings in cases tried without a jury whether the

finding is of a fact concerning which there was conflict of

testimony, or of a fact deduced or inferred from uncontradicted

testimony. See Silver King Coalition Mines, Co. v. Silver King

Consolidated Mining Co., 204 Fed. 166 (C.C.A.8th, 1913), cert. den.

229 U.S. 624 (1913); Warren v. Keep, 155 U.S. 265 (1894); Furrer v.

Ferris, 145 U.S. 132 (1892); Tilghman v. Proctor, 125 U.S. 136, 149

(1888); Kimberly v. Arms, 129 U.S. 512, 524 (1889). Compare Kaeser

& Blair, Inc., v. Merchants' Ass'n, 64 F.(2d) 575, 576 (C.C.A.6th,

1933); Dunn v. Trefry, 260 Fed. 147, 148 (C.C.A.1st, 1919).

In the following states findings of fact are required in all

cases tried without a jury (waiver by the parties being permitted

as indicated at the end of the listing): Arkansas, Civ.Code

(Crawford, 1934) Sec. 364; California, Code Civ.Proc. (Deering,

1937) Secs. 632, 634; Colorado, 1 Stat.Ann. (1935) Code Civ.Proc.

Secs. 232, 291 (in actions before referees or for possession of and

damages to land); Connecticut, Gen.Stats. Secs. 5660, 5664; Idaho,

1 Code Ann. (1932) Secs. 7-302 through 7-305; Massachusetts (equity

cases), 2 Gen.Laws (Ter.Ed., 1932) ch. 214, Sec. 23; Minnesota, 2

Stat. (Mason, 1927) Sec. 9311; Nevada, 4 Comp.Laws (Hillyer, 1929)

Sec. 8783-8784; New Jersey, Sup.Ct. Rule 113, 2 N.J.Misc. 1197,

1239 (1924); New Mexico, Stat.Ann. (Courtright, 1929) Sec. 105-813;

North Carolina, Code (1935) Sec. 569; North Dakota, 2 Comp.Laws

Ann. (1913) Sec. 7641; Oregon, 2 Code Ann. (1930) Sec. 2-502; South

Carolina, Code (Michie, 1932) Sec. 649; South Dakota, 1 Comp.Laws

(1929) Secs. 2525-2526; Utah, Rev.Stat.Ann. (1933) Sec. 104-26-2,

104-26-3; Vermont (where jury trial waived), Pub. Laws (1933) Sec.

2069; Washington, 2 Rev.Stat.Ann. (Remington, 1932) Sec. 367;

Wisconsin, Stat. (1935) Sec. 270.33. The parties may waive this

requirement for findings in California, Idaho, North Dakota,

Nevada, New Mexico, Utah, and South Dakota.

In the following states the review of findings of fact in all

non-jury cases, including jury waived cases, is assimilated to the

equity review: Alabama, Code Ann. (Michie, 1928) Secs. 9498, 8599;

California, Code Civ.Proc. (Deering, 1937) Sec. 956a; but see 20

Calif.Law Rev. 171 (1932); Colorado, Johnson v. Kountze, 21 Colo.

486, 43 Pac. 445 (1895), semble; Illinois, Baker v. Hinricks, 359

Ill. 138, 194 N.E. 284 (1934), Weininger v. Metropolitan Fire Ins.

Co., 359 Ill. 584, 195 N.E. 420, 98 A.L.R. 169 (1935); Minnesota,

State Bank of Gibbon v. Walter, 167 Minn. 37, 38, 208 N.W. 423

(1926), Waldron v. Page, 191 Minn. 302, 253 N.W. 894 (1934); New

Jersey, N.J.Comp.Stat. (2 Cum.Supp. 1911-1924) Title 163, Sec. 303,

as interpreted in Bussy v. Hatch, 95 N.J.L. 56, 111 A. 546 (1920);

New York, York Mortgage Corporation v. Clotar Const. Corp., 254

N.Y. 128, 133, 172 N.E. 265 (1930); North Dakota, Comp.Laws Ann.

(1913) Sec. 7846, as amended by N.D.Laws 1933, ch. 208, Milnor

Holding Co. v. Holt, 63 N.D. 362, 370, 248 N.W. 315 (1933);

Oklahoma, Wichita Mining and Improvement Co. v. Hale, 20 Okla. 159,

167, 94 Pac. 530 (1908); South Dakota, Randall v. Burk Township, 4

S.D. 337, 57 N.W. 4 (1893); Texas, Custard v. Flowers, 14 S.W.2d

109 (1929); Utah, Rev.Stat.Ann. (1933) Sec. 104-41-5; Vermont,

Roberge v. Troy, 105 Vt. 134, 163 Atl. 770 (1933); Washington, 2

Rev.Stat.Ann. (Remington, 1932) Secs. 309-316; McCullough v. Puget

Sound Realty Associates, 76 Wash. 700, 136 Pac. 1146 (1913), but

see Cornwall v. Anderson, 85 Wash. 369, 148 Pac. 1 (1915); West

Virginia, Kinsey v. Carr, 60 W.Va. 449, 55 S.E. 1004 (1906),

semble; Wisconsin, Stat. (1935) Sec. 251.09; Campbell v. Sutliff,

193 Wis. 370, 214 N.W. 374 (1927), Gessler v. Erwin Co., 182 Wis.

315, 193 N.W. 363 (1924).

For examples of an assimilation of the review of findings of fact

in cases tried without a jury to the review at law as made in

several states, see Clark and Stone, Review of Findings of Fact, 4

U. of Chi.L.Rev. 190, 215 (1937).

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Subdivision (a). The amended rule makes clear that the

requirement for findings of fact and conclusions of law thereon

applies in a case with an advisory jury. This removes an ambiguity

in the rule as originally stated, but carries into effect what has

been considered its intent. 3 Moore's Federal Practice (1938) 3119;

Hurwitz v. Hurwitz (App.D.C. 1943) 136 F.(2d) 796.

The two sentences added at the end of Rule 52(a) eliminate

certain difficulties which have arisen concerning findings and

conclusions. The first of the two sentences permits findings of

fact and conclusions of law to appear in an opinion or memorandum

of decision. See, e.g., United States v. One 1941 Ford Sedan

(S.D.Tex. 1946) 65 F.Supp. 84. Under original Rule 52(a) some

courts have expressed the view that findings and conclusions could

not be incorporated in an opinion. Detective Comics, Inc. v. Bruns

Publications (S.D.N.Y. 1939) 28 F.Supp. 399; Pennsylvania Co. for

Insurance on Lives & Granting Annuities v. Cincinnati & L. E. R.

Co. (S.D.Ohio 1941) 43 F.Supp. 5; United States v. Aluminum Co. of

America (S.D.N.Y. 1941) 5 Fed.Rules Serv. 52a.11, Case 3; see also

s.c., 44 F.Supp. 97. But, to the contrary, see Wellman v. United

States (D.Mass. 1938) 25 F.Supp. 868; Cook v. United States

(D.Mass. 1939) 26 F.Supp. 253; Proctor v. White (D.Mass. 1939) 28

F.Supp. 161; Green Valley Creamery, Inc. v. United States

(C.C.A.1st, 1939) 108 F.(2d) 342. See also Matton Oil Transfer

Corp. v. The Dynamic (C.C.A.2d, 1941) 123 F.(2d) 999; Carter Coal

Co. v. Litz (C.C.A.4th, 1944) 140 F.(2d) 934; Woodruff v. Heiser

(C.C.A.10th, 1945) 150 F.(2d) 869; Coca-Cola Co. v. Busch (E.D.Pa.

1943) 7 Fed.Rules Serv. 59b.2, Case 4; Oglebay, Some Developments

in Bankruptcy Law (1944) 18 J. of Nat'l Ass'n of Ref. 68, 69.

Findings of fact aid in the process of judgment and in defining for

future cases the precise limitations of the issues and the

determination thereon. Thus they not only aid the appellate court

on review (Hurwitz v. Hurwitz (App.D.C. 1943) 136 F.(2d) 796) but

they are an important factor in the proper application of the

doctrines of res judicata and estoppel by judgment. Nordbye,

Improvements in Statement of Findings of Fact and Conclusions of

Law, 1 F.R.D. 25, 26-27; United States v. Forness (C.C.A.2d, 1942)

125 F.(2d) 928, cert. den. (1942) 316 U.S. 694. These findings

should represent the judge's own determination and not the long,

often argumentative statements of successful counsel. United States

v. Forness, supra; United States v. Crescent Amusement Co. (1944)

323 U.S. 173. Consequently, they should be a part of the judge's

opinion and decision, either stated therein or stated separately.

Matton Oil Transfer Corp. v. The Dynamic, supra. But the judge need

only make brief, definite, pertinent findings and conclusions upon

the contested matters; there is no necessity for over-elaboration

of detail or particularization of facts. United States v. Forness,

supra; United States v. Crescent Amusement Co., supra. See also

Petterson Lighterage & Towing Corp. v. New York Central R. Co.

(C.C.A.2d, 1942) 126 F.(2d) 992; Brown Paper Mill Co., Inc. v.

Irwin (C.C.A.8th, 1943) 134 F.(2d) 337; Allen Bradley Co. v. Local

Union No. 3, I.B.E.W. (C.C.A.2d, 1944) 145 F.(2d) 215, rev'd on

other grounds (1945) 325 U.S. 797; Young v. Murphy (N.D.Ohio 1946)

9 Fed.Rules Serv. 52a.11, Case 2.

The last sentence of Rule 52(a) as amended will remove any doubt

that findings and conclusions are unnecessary upon decision of a

motion, particularly one under Rule 12 or Rule 56, except as

provided in amended Rule 41(b). As so holding, see Thomas v. Peyser

(App.D.C. 1941) 118 F.(2d) 369; Schad v. Twentieth Century-Fox

Corp. (C.C.A.3d, 1943) 136 F.(2d) 991; Prudential Ins. Co. of

America v. Goldstein (E.D.N.Y. 1942) 43 F.Supp. 767; Somers Coal

Co. v. United States (N.D.Ohio 1942) 6 Fed.Rules Serv. 52a.1, Case

1; Pen-Ken Oil & Gas Corp. v. Warfield Natural Gas Co. (E.D.Ky.

1942) 5 Fed.Rules Serv. 52a.1, Case 3; also Commentary, Necessity

of Findings of Fact (1941) 4 Fed.Rules Serv. 936.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This amendment conforms to the amendment of Rule 58. See the

Advisory Committee's Note to Rule 58, as amended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT

Rule 52(a) has been amended to revise its penultimate sentence to

provide explicitly that the district judge may make the findings of

fact and conclusions of law required in nonjury cases orally.

Nothing in the prior text of the rule forbids this practice, which

is widely utilized by district judges. See Christensen, A Modest

Proposal for Immeasurable Improvement, 64 A.B.A.J. 693 (1978). The

objective is to lighten the burden on the trial court in preparing

findings in nonjury cases. In addition, the amendment should reduce

the number of published district court opinions that embrace

written findings.

NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT

Rule 52(a) has been amended (1) to avoid continued confusion and

conflicts among the circuits as to the standard of appellate review

of findings of fact by the court, (2) to eliminate the disparity

between the standard of review as literally stated in Rule 52(a)

and the practice of some courts of appeals, and (3) to promote

nationwide uniformity. See Note, Rule 52(a): Appellate Review of

Findings of Fact Based on Documentary or Undisputed Evidence, 49

Va. L. Rev. 506, 536 (1963).

Some courts of appeal have stated that when a trial court's

findings do not rest on demeanor evidence and evaluation of a

witness' credibility, there is no reason to defer to the trial

court's findings and the appellate court more readily can find them

to be clearly erroneous. See, e.g., Marcum v. United States, 621

F.2d 142, 144-45 (5th Cir. 1980). Others go further, holding that

appellate review may be had without application of the "clearly

erroneous" test since the appellate court is in as good a position

as the trial court to review a purely documentary record. See,

e.g., Atari, Inc. v. North American Philips Consumer Electronics

Corp., 672 F.2d 607, 614 (7th Cir.), cert. denied, 459 U.S. 880

(1982); Lydle v. United States, 635 F.2d 763, 765 n. 1 (6th Cir.

1981); Swanson v. Baker Indus., Inc., 615 F.2d 479, 483 (8th Cir.

1980); Taylor v. Lombard, 606 F.2d 371, 372 (2d Cir. 1979), cert.

denied, 445 U.S. 946 (1980); Jack Kahn Music Co. v. Baldwin Piano &

Organ Co., 604 F.2d 755, 758 (2d Cir. 1979); John R. Thompson Co.

v. United States, 477 F.2d 164, 167 (7th Cir. 1973).

A third group has adopted the view that the "clearly erroneous"

rule applies in all nonjury cases even when findings are based

solely on documentary evidence or on inferences from undisputed

facts. See, e.g., Maxwell v. Sumner, 673 F.2d 1031, 1036 (9th

Cir.), cert. denied, 459 U.S. 976 (1982); United States v. Texas

Education Agency, 647 F.2d 504, 506-07 (5th Cir. 1981), cert.

denied, 454 U.S. 1143 (1982); Constructora Maza, Inc. v. Banco de

Ponce, 616 F.2d 573, 576 (1st Cir. 1980); In re Sierra Trading

Corp., 482 F.2d 333, 337 (10th Cir. 1973); Case v. Morrisette, 475

F.2d 1300, 1306-07 (D.C. Cir. 1973).

The commentators also disagree as to the proper interpretation of

the Rule. Compare Wright, The Doubtful Omniscience of Appellate

Courts, 41 Minn. L. Rev. 751, 769-70 (1957) (language and intent of

Rule support view that "clearly erroneous" test should apply to all

forms of evidence), and 9 C. Wright & A. Miller, Federal Practice

and Procedure: Civil Sec. 2587, at 740 (1971) (language of the Rule

is clear), with 5A J. Moore, Federal Practice ¶ 52.04, 2687-88

(2d ed. 1982) (Rule as written supports broader review of findings

based on non-demeanor testimony).

The Supreme Court has not clearly resolved the issue. See, Bose

Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104

S. Ct. 1949, 1958 (1984); Pullman Standard v. Swint, 456 U.S. 273,

293 (1982); United States v. General Motors Corp., 384 U.S. 127,

141 n. 16 (1966); United States v. United States Gypsum Co., 333

U.S. 364, 394-96 (1948).

The principal argument advanced in favor of a more searching

appellate review of findings by the district court based solely on

documentary evidence is that the rationale of Rule 52(a) does not

apply when the findings do not rest on the trial court's assessment

of credibility of the witnesses but on an evaluation of documentary

proof and the drawing of inferences from it, thus eliminating the

need for any special deference to the trial court's findings. These

considerations are outweighed by the public interest in the

stability and judicial economy that would be promoted by

recognizing that the trial court, not the appellate tribunal,

should be the finder of the facts. To permit courts of appeals to

share more actively in the fact-finding function would tend to

undermine the legitimacy of the district courts in the eyes of

litigants, multiply appeals by encouraging appellate retrial of

some factual issues, and needlessly reallocate judicial authority.

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

Subdivision (c) is added. It parallels the revised Rule 50(a),

but is applicable to non-jury trials. It authorizes the court to

enter judgment at any time that it can appropriately make a

dispositive finding of fact on the evidence.

The new subdivision replaces part of Rule 41(b), which formerly

authorized a dismissal at the close of the plaintiff's case if the

plaintiff had failed to carry an essential burden of proof.

Accordingly, the reference to Rule 41 formerly made in subdivision

(a) of this rule is deleted.

As under the former Rule 41(b), the court retains discretion to

enter no judgment prior to the close of the evidence.

Judgment entered under this rule differs from a summary judgment

under Rule 56 in the nature of the evaluation made by the court. A

judgment on partial findings is made after the court has heard all

the evidence bearing on the crucial issue of fact, and the finding

is reversible only if the appellate court finds it to be "clearly

erroneous." A summary judgment, in contrast, is made on the basis

of facts established on account of the absence of contrary evidence

or presumptions; such establishments of fact are rulings on

questions of law as provided in Rule 56(a) and are not shielded by

the "clear error" standard of review.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

This technical amendment corrects an ambiguity in the text of the

1991 revision of the rule, similar to the revision being made to

Rule 50. This amendment makes clear that judgments as a matter of

law in nonjury trials may be entered against both plaintiffs and

defendants and with respect to issues or defenses that may not be

wholly dispositive of a claim or defense.

NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT

The only change, other than stylistic, intended by this revision

is to require that any motion to amend or add findings after a

nonjury trial must be filed no later than 10 days after entry of

the judgment. Previously, there was an inconsistency in the wording

of Rules 50, 52, and 59 with respect to whether certain

post-judgment motions had to be filed, or merely served, during

that period. This inconsistency caused special problems when

motions for a new trial were joined with other post-judgment

motions. These motions affect the finality of the judgment, a

matter often of importance to third persons as well as the parties

and the court. The Committee believes that each of these rules

should be revised to require filing before end of the 10-day

period. Filing is an event that can be determined with certainty

from court records. The phrase "no later than" is used - rather

than "within" - to include post-judgment motions that sometimes are

filed before actual entry of the judgment by the clerk. It should

be noted that under Rule 6(a) Saturdays, Sundays, and legal

holidays are excluded in measuring the 10-day period, and that

under Rule 5 the motions when filed are to contain a certificate of

service on other parties.

-End-

-CITE-

28 USC APPENDIX Rule 53 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VI. TRIALS

-HEAD-

Rule 53. Masters

-STATUTE-

(a) Appointment and Compensation. The court in which any action

is pending may appoint a special master therein. As used in these

rules, the word "master" includes a referee, an auditor, an

examiner, and an assessor. The compensation to be allowed to a

master shall be fixed by the court, and shall be charged upon such

of the parties or paid out of any fund or subject matter of the

action, which is in the custody and control of the court as the

court may direct; provided that this provision for compensation

shall not apply when a United States magistrate judge is designated

to serve as a master. The master shall not retain the master's

report as security for the master's compensation; but when the

party ordered to pay the compensation allowed by the court does not

pay it after notice and within the time prescribed by the court,

the master is entitled to a writ of execution against the

delinquent party.

(b) Reference. A reference to a master shall be the exception and

not the rule. In actions to be tried by a jury, a reference shall

be made only when the issues are complicated; in actions to be

tried without a jury, save in matters of account and of difficult

computation of damages, a reference shall be made only upon a

showing that some exceptional condition requires it. Upon the

consent of the parties, a magistrate judge may be designated to

serve as a special master without regard to the provisions of this

subdivision.

(c) Powers. The order of reference to the master may specify or

limit the master's powers and may direct the master to report only

upon particular issues or to do or perform particular acts or to

receive and report evidence only and may fix the time and place for

beginning and closing the hearings and for the filing of the

master's report. Subject to the specifications and limitations

stated in the order, the master has and shall exercise the power to

regulate all proceedings in every hearing before the master and to

do all acts and take all measures necessary or proper for the

efficient performance of the master's duties under the order. The

master may require the production before the master of evidence

upon all matters embraced in the reference, including the

production of all books, papers, vouchers, documents, and writings

applicable thereto. The master may rule upon the admissibility of

evidence unless otherwise directed by the order of reference and

has the authority to put witnesses on oath and may examine them and

may call the parties to the action and examine them upon oath. When

a party so requests, the master shall make a record of the evidence

offered and excluded in the same manner and subject to the same

limitations as provided in the Federal Rules of Evidence for a

court sitting without a jury.

(d) Proceedings.

(1) Meetings. When a reference is made, the clerk shall

forthwith furnish the master with a copy of the order of

reference. Upon receipt thereof unless the order of reference

otherwise provides, the master shall forthwith set a time and

place for the first meeting of the parties or their attorneys to

be held within 20 days after the date of the order of reference

and shall notify the parties or their attorneys. It is the duty

of the master to proceed with all reasonable diligence. Either

party, on notice to the parties and master, may apply to the

court for an order requiring the master to speed the proceedings

and to make the report. If a party fails to appear at the time

and place appointed, the master may proceed ex parte or, in the

master's discretion, adjourn the proceedings to a future day,

giving notice to the absent party of the adjournment.

(2) Witnesses. The parties may procure the attendance of

witnesses before the master by the issuance and service of

subpoenas as provided in Rule 45. If without adequate excuse a

witness fails to appear or give evidence, the witness may be

punished as for a contempt and be subjected to the consequences,

penalties, and remedies provided in Rules 37 and 45.

(3) Statement of Accounts. When matters of accounting are in

issue before the master, the master may prescribe the form in

which the accounts shall be submitted and in any proper case may

require or receive in evidence a statement by a certified public

accountant who is called as a witness. Upon objection of a party

to any of the items thus submitted or upon a showing that the

form of statement is insufficient, the master may require a

different form of statement to be furnished, or the accounts or

specific items thereof to be proved by oral examination of the

accounting parties or upon written interrogatories or in such

other manner as the master directs.

(e) Report.

(1) Contents and Filing. The master shall prepare a report upon

the matters submitted to the master by the order of reference

and, if required to make findings of fact and conclusions of law,

the master shall set them forth in the report. The master shall

file the report with the clerk of the court and serve on all

parties notice of the filing. In an action to be tried without a

jury, unless otherwise directed by the order of reference, the

master shall file with the report a transcript of the proceedings

and of the evidence and the original exhibits. Unless otherwise

directed by the order of reference, the master shall serve a copy

of the report on each party.

(2) In Non-Jury Actions. In an action to be tried without a

jury the court shall accept the master's findings of fact unless

clearly erroneous. Within 10 days after being served with notice

of the filing of the report any party may serve written

objections thereto upon the other parties. Application to the

court for action upon the report and upon objections thereto

shall be by motion and upon notice as prescribed in Rule 6(d).

The court after hearing may adopt the report or may modify it or

may reject it in whole or in part or may receive further evidence

or may recommit it with instructions.

(3) In Jury Actions. In an action to be tried by a jury the

master shall not be directed to report the evidence. The master's

findings upon the issues submitted to the master are admissible

as evidence of the matters found and may be read to the jury,

subject to the ruling of the court upon any objections in point

of law which may be made to the report.

(4) Stipulation as to Findings. The effect of a master's report

is the same whether or not the parties have consented to the

reference; but, when the parties stipulate that a master's

findings of fact shall be final, only questions of law arising

upon the report shall thereafter be considered.

(5) Draft Report. Before filing the master's report a master

may submit a draft thereof to counsel for all parties for the

purpose of receiving their suggestions.

(f) Application to Magistrate Judge. A magistrate judge is

subject to this rule only when the order referring a matter to the

magistrate judge expressly provides that the reference is made

under this rule.

-SOURCE-

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 28, 1983, eff.

Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff.

Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). This is a modification of [former]

Equity Rule 68 (Appointment and Compensation of Masters).

Note to Subdivision (b). This is substantially the first sentence

of [former] Equity Rule 59 (Reference to Master - Exceptional, Not

Usual) extended to actions formerly legal. See Ex parte Peterson

253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919 (1920).

Note to Subdivision (c). This is [former] Equity Rules 62 (Powers

of Master) and 65 (Claimants Before Master Examinable by Him) with

slight modifications. Compare [former] Equity Rules 49 (Evidence

Taken Before Examiners, Etc.) and 51 (Evidence Taken Before

Examiners, Etc.).

Note to Subdivision (d). (1) This is substantially a combination

of the second sentence of [former] Equity Rule 59 (Reference to

Master - Exceptional, Not Usual) and [former] Equity Rule 60

(Proceedings Before Master). Compare [former] Equity Rule 53

(Notice of Taking Testimony Before Examiner, Etc.).

(2) This is substantially [former] Equity Rule 52 (Attendance of

Witnesses Before Commissioner, Master, or Examiner).

(3) This is substantially [former] Equity Rule 63 (Form of

Accounts Before Master).

Note to Subdivision (e). This contains the substance of [former]

Equity Rules 61 (Master's Report - Documents Identified but not Set

Forth), 61 1/2 (Master's Report - Presumption as to Correctness -

Review), and 66 (Return of Master's Report - Exceptions - Hearing),

with modifications as to the form and effect of the report and for

inclusion of reports by auditors, referees, and examiners, and

references in actions formerly legal. Compare [former] Equity Rules

49 (Evidence Taken Before Examiners, Etc.) and 67 (Costs on

Exceptions to Master's Report). See Camden v. Stuart, 144 U.S. 104,

12 S.Ct. 585, 36 L.Ed. 363 (1892); Ex parte Peterson, 253 U.S. 300,

40 S.Ct. 543, 64 L.Ed. 919 (1920).

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

These changes are designed to preserve the admiralty practice

whereby difficult computations are referred to a commissioner or

assessor, especially after an interlocutory judgment determining

liability. As to separation of issues for trial see Rule 42(b).

NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT

Subdivision (a). The creation of full-time magistrates, who serve

at government expense and have no nonjudicial duties competing for

their time, eliminates the need to appoint standing masters. Thus

the prior provision in Rule 53(a) authorizing the appointment of

standing masters is deleted. Additionally, the definition of

"master" in subdivision (a) now eliminates the superseded office of

commissioner.

The term "special master" is retained in Rule 53 in order to

maintain conformity with 28 U.S.C. Sec. 636(b)(2), authorizing a

judge to designate a magistrate "to serve as a special master

pursuant to the applicable provisions of this title and the Federal

Rules of Civil Procedure for the United States District Courts."

Obviously, when a magistrate serves as a special master, the

provisions for compensation of masters are inapplicable, and the

amendment to subdivision (a) so provides.

Although the existence of magistrates may make the appointment of

outside masters unnecessary in many instances, see, e.g., Gautreaux

v. Chicago Housing Authority, 384 F.Supp. 37 (N.D.Ill. 1974),

mandamus denied sub nom., Chicago Housing Authority v. Austin, 511

F.2d 82 (7th Cir. 1975); Avco Corp. v. American Tel. & Tel. Co., 68

F.R.D. 532 (S.D. Ohio 1975), such masters may prove useful when

some special expertise is desired or when a magistrate is

unavailable for lengthy and detailed supervision of a case.

Subdivision (b). The provisions of 28 U.S.C. Sec. 636(b)(2) not

only permit magistrates to serve as masters under Rule 53(b) but

also eliminate the exceptional condition requirement of Rule 53(b)

when the reference is made with the consent of the parties. The

amendment to subdivision (b) brings Rule 53 into harmony with the

statute by exempting magistrates, appointed with the consent of the

parties, from the general requirement that some exceptional

condition requires the reference. It should be noted that

subdivision (b) does not address the question, raised in recent

decisional law and commentary, as to whether the exceptional

condition requirement is applicable when private masters who are

not magistrates are appointed with the consent of the parties. See

Silberman, Masters and Magistrates Part II: The American Analogue,

50 N.Y.U. L.Rev. 1297, 1354 (1975).

Subdivision (c). The amendment recognizes the abrogation of

Federal Rule 43(c) by the Federal Rules of Evidence.

Subdivision (f). The new subdivision responds to confusion

flowing from the dual authority for references of pretrial matters

to magistrates. Such references can be made, with or without the

consent of the parties, pursuant to Rule 53 or under 28 U.S.C. Sec.

636(b)(1)(A) and (b)(1)(B). There are a number of distinctions

between references made under the statute and under the rule. For

example, under the statute nondispositive pretrial matters may be

referred to a magistrate, without consent, for final determination

with reconsideration by the district judge if the magistrate's

order is clearly erroneous or contrary to law. Under the rule,

however, the appointment of a master, without consent of the

parties, to supervise discovery would require some exceptional

condition (Rule 53(b)) and would subject the proceedings to the

report procedures of Rule 53(e). If an order of reference does not

clearly articulate the source of the court's authority the

resulting proceedings could be subject to attack on grounds of the

magistrate's noncompliance with the provisions of Rule 53. This

subdivision therefore establishes a presumption that the

limitations of Rule 53 are not applicable unless the reference is

specifically made subject to Rule 53.

A magistrate serving as a special master under 28 U.S.C. Sec.

636(b)(2) is governed by the provisions of Rule 53, with the

exceptional condition requirement lifted in the case of a

consensual reference.

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 purpose of the revision is to expedite proceedings before a

master. The former rule required only a filing of the master's

report, with the clerk then notifying the parties of the filing. To

receive a copy, a party would then be required to secure it from

the clerk. By transmitting directly to the parties, the master can

save some efforts of counsel. Some local rules have previously

required such action by the master.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

This revision is made to conform the rule to changes made by the

Judicial Improvements Act of 1990.

-End-

-CITE-

28 USC APPENDIX VII. JUDGMENT 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VII. JUDGMENT

-HEAD-

VII. JUDGMENT

-End-

-CITE-

28 USC APPENDIX Rule 54 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VII. JUDGMENT

-HEAD-

Rule 54. Judgments; Costs

-STATUTE-

(a) Definition; Form. "Judgment" as used in these rules includes

a decree and any order from which an appeal lies. A judgment shall

not contain a recital of pleadings, the report of a master, or the

record of prior proceedings.

(b) Judgment Upon Multiple Claims or Involving Multiple Parties.

When more than one claim for relief is presented in an action,

whether as a claim, counterclaim, cross-claim, or third-party

claim, or when multiple parties are involved, the court may direct

the entry of a final judgment as to one or more but fewer than all

of the claims or parties only upon an express determination that

there is no just reason for delay and upon an express direction for

the entry of judgment. In the absence of such determination and

direction, any order or other form of decision, however designated,

which adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties shall not terminate the

action as to any of the claims or parties, and the order or other

form of decision is subject to revision at any time before the

entry of judgment adjudicating all the claims and the rights and

liabilities of all the parties.

(c) Demand for Judgment. A judgment by default shall not be

different in kind from or exceed in amount that prayed for in the

demand for judgment. Except as to a party against whom a judgment

is entered by default, every final judgment shall grant the relief

to which the party in whose favor it is rendered is entitled, even

if the party has not demanded such relief in the party's pleadings.

(d) Costs; Attorneys' Fees.

(1) Costs Other than Attorneys' Fees. Except when express

provision therefor is made either in a statute of the United

States or in these rules, costs other than attorneys' fees shall

be allowed as of course to the prevailing party unless the court

otherwise directs; but costs against the United States, its

officers, and agencies shall be imposed only to the extent

permitted by law. Such costs may be taxed by the clerk on one

day's notice. On motion served within 5 days thereafter, the

action of the clerk may be reviewed by the court.

(2) Attorneys' Fees.

(A) Claims for attorneys' fees and related nontaxable

expenses shall be made by motion unless the substantive law

governing the action provides for the recovery of such fees as

an element of damages to be proved at trial.

(B) Unless otherwise provided by statute or order of the

court, the motion must be filed no later than 14 days after

entry of judgment; must specify the judgment and the statute,

rule, or other grounds entitling the moving party to the award;

and must state the amount or provide a fair estimate of the

amount sought. If directed by the court, the motion shall also

disclose the terms of any agreement with respect to fees to be

paid for the services for which claim is made.

(C) On request of a party or class member, the court shall

afford an opportunity for adversary submissions with respect to

the motion in accordance with Rule 43(e) or Rule 78. The court

may determine issues of liability for fees before receiving

submissions bearing on issues of evaluation of services for

which liability is imposed by the court. The court shall find

the facts and state its conclusions of law as provided in Rule

52(a).

(D) By local rule the court may establish special procedures

by which issues relating to such fees may be resolved without

extensive evidentiary hearings. In addition, the court may

refer issues relating to the value of services to a special

master under Rule 53 without regard to the provisions of

subdivision (b) thereof and may refer a motion for attorneys'

fees to a magistrate judge under Rule 72(b) as if it were a

dispositive pretrial matter.

(E) The provisions of subparagraphs (A) through (D) do not

apply to claims for fees and expenses as sanctions for

violations of these rules or under 28 U.S.C. Sec. 1927.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 17, 1961, eff.

July 19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff.

Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). The second sentence is derived

substantially from [former] Equity Rule 71 (Form of Decree).

Note to Subdivision (b). This provides for the separate judgment

of equity and code practice. See Wis.Stat. (1935) Sec. 270.54;

Compare N.Y.C.P.A. (1937) Sec. 476.

Note to Subdivision (c). For the limitation on default contained

in the first sentence, see 2 N.D.Comp.Laws Ann. (1913) Sec. 7680;

N.Y.C.P.A. (1937) Sec. 479. Compare English Rules Under the

Judicature Act (The Annual Practice, 1937) O. 13, r.r. 3-12. The

remainder is a usual code provision. It makes clear that a judgment

should give the relief to which a party is entitled, regardless of

whether it is legal or equitable or both. This necessarily includes

the deficiency judgment in foreclosure cases formerly provided for

by Equity Rule 10 (Decree for Deficiency in Foreclosures, Etc.).

Note to Subdivision (d). For the present rule in common law

actions, see Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64

L.Ed. 919 (1920); Payne, Costs in Common Law Actions in the Federal

Courts (1935), 21 Va.L.Rev. 397.

The provisions as to costs in actions in forma pauperis contained

in U.S.C., Title 28, Secs. 832-836 [now 1915] are unaffected by

this rule. Other sections of U.S.C., Title 28, which are unaffected

by this rule are: Secs. 815 [former] (Costs; plaintiff not entitled

to, when), 821 [now 1928] (Costs; infringement of patent;

disclaimer), 825 (Costs; several actions), 829 [now 1927] (Costs;

attorney liable for, when), and 830 [now 1920] (Costs; bill of;

taxation).

The provisions of the following and similar statutes as to costs

against the United States and its officers and agencies are

specifically continued:

U.S.C., Title 15, Secs. 77v(a), 78aa, 79y (Securities and Exchange

Commission)

U.S.C., Title 16, Sec. 825p (Federal Power Commission)

U.S.C., Title 26, [former] Secs. 1569(d) and 1645(d) (Internal

revenue actions)

U.S.C., Title 26, [former] Sec. 1670(b)(2) (Reimbursement of costs

of recovery against revenue officers)

U.S.C., Title 28, [former] Sec. 817 (Internal revenue actions)

U.S.C., Title 28, Sec. 836 [now 1915] (United States - actions in

forma pauperis)

U.S.C., Title 28, Sec. 842 [now 2006] (Actions against revenue

officers)

U.S.C., Title 28, Sec. 870 [now 2408] (United States - in certain

cases)

U.S.C., Title 28, [former] Sec. 906 (United States - foreclosure

actions)

U.S.C., Title 47, Sec. 401 (Communications Commission)

The provisions of the following and similar statutes as to costs

are unaffected:

U.S.C., Title 7, Sec. 210(f) (Actions for damages based on an

order of the Secretary of Agriculture under Stockyards Act)

U.S.C., Title 7, Sec. 499g(c) (Appeals from reparations orders of

Secretary of Agriculture under Perishable Commodities Act)

U.S.C., Title 8, [former] Sec. 45 (Action against district

attorneys in certain cases)

U.S.C., Title 15, Sec. 15 (Actions for injuries due to violation

of antitrust laws)

U.S.C., Title 15, Sec. 72 (Actions for violation of law forbidding

importation or sale of articles at less than market value or

wholesale prices)

U.S.C., Title 15, Sec. 77k (Actions by persons acquiring

securities registered with untrue statements under Securities

Act of 1933)

U.S.C., Title 15, Sec. 78i(e) (Certain actions under the

Securities Exchange Act of 1934)

U.S.C., Title 15, Sec. 78r (Similar to 78i(e))

U.S.C., Title 15, Sec. 96 (Infringement of trade-mark - damages)

U.S.C., Title 15, Sec. 99 (Infringement of trade-mark -

injunctions)

U.S.C., Title 15, Sec. 124 (Infringement of trade-mark - damages)

U.S.C., Title 19, Sec. 274 (Certain actions under customs law)

U.S.C., Title 30, Sec. 32 (Action to determine right to possession

of mineral lands in certain cases)

U.S.C., Title 31, Secs. 232 [now 3730] and [former] 234 (Action

for making false claims upon United States)

U.S.C., Title 33, Sec. 926 (Actions under Harbor Workers'

Compensation Act)

U.S.C., Title 35, Sec. 67 [now 281, 284] (Infringement of patent -

damages)

U.S.C., Title 35, Sec. 69 [now 282] (Infringement of patent -

pleading and proof)

U.S.C., Title 35, Sec. 71 [now 288] (Infringement of patent - when

specification too broad)

U.S.C., Title 45, Sec. 153p (Actions for non-compliance with an

order of National R. R. Adjustment Board for payment of

money)

U.S.C., Title 46, [former] Sec. 38 (Action for penalty for failure

to register vessel)

U.S.C., Title 46, [former] Sec. 829 (Action based on

non-compliance with an order of Maritime Commission for

payment of money)

U.S.C., Title 46, Sec. 941 [now 31304] (Certain actions under Ship

Mortgage Act)

U.S.C., Title 46 [App.], Sec. 1227 (Actions for damages for

violation of certain provisions of the Merchant Marine Act,

1936)

U.S.C., Title 47, Sec. 206 (Actions for certain violations of

Communications Act of 1934)

U.S.C., Title 49, Sec. 16(2) [see 11704, 15904] (Action based on

non-compliance with an order of I. C. C. for payment of

money)

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

The historic rule in the federal courts has always prohibited

piecemeal disposal of litigation and permitted appeals only from

final judgments except in those special instances covered by

statute. Hohorst v. Hamburg-American Packet Co. (1893) 148 U.S.

262; Rexford v. Brunswick-Balke-Collender Co. (1913) 228 U.S. 339;

Collins v. Miller (1920) 252 U.S. 364. Rule 54(b) was originally

adopted in view of the wide scope and possible content of the newly

created "civil action" in order to avoid the possible injustice of

a delay in judgment of a distinctly separate claim to await

adjudication of the entire case. It was not designed to overturn

the settled federal rule stated above, which, indeed, has more

recently been reiterated in Catlin v. United States (1945) 324 U.S.

229. See also United States v. Florian (1941) 312 U.S. 656, rev'g

(and restoring the first opinion in) Florian v. United States

(C.C.A.7th, 1940) 114 F.(2d) 990; Reeves v. Beardall (1942) 316

U.S. 283.

Unfortunately, this was not always understood, and some confusion

ensued. Hence situations arose where district courts made a

piecemeal disposition of an action and entered what the parties

thought amounted to a judgment, although a trial remained to be had

on other claims similar or identical with those disposed of. In the

interim the parties did not know their ultimate rights, and

accordingly took an appeal, thus putting the finality of the

partial judgment in question. While most appellate courts have

reached a result generally in accord with the intent of the rule,

yet there have been divergent precedents and division of views

which have served to render the issues more clouded to the parties

appellant. It hardly seems a case where multiplicity of precedents

will tend to remove the problem from debate. The problem is

presented and discussed in the following cases: Atwater v. North

American Coal Corp. (C.C.A.2d, 1940) 111 F.(2d) 125; Rosenblum v.

Dingfelder (C.C.A.2d, 1940) 111 F.(2d) 406; Audi-Vision, Inc. v.

RCA Mfg. Co., Inc. (C.C.A.2d, 1943) 136 F.(2d) 621; Zalkind v.

Scheinman (C.C.A.2d, 1943) 139 F.(2d) 895; Oppenheimer v. F. J.

Young & Co., Inc. (C.C.A.2d, 1944) 144 F.(2d) 387;

Libbey-Owens-Ford Glass Co. v. Sylvania Industrial Corp. (C.C.A.2d,

1946) 154 F.(2d) 814, cert. den. (1946) 66 S.Ct. 1353; Zarati

Steamship Co. v. Park Bridge Corp. (C.C.A.2d, 1946) 154 F.(2d) 377;

Baltimore and Ohio R. Co. v. United Fuel Gas Co. (C.C.A.4th, 1946)

154 F.(2d) 545; Jefferson Electric Co. v. Sola Electric Co.

(C.C.A.7th, 1941) 122 F.(2d) 124; Leonard v. Socony-Vacuum Oil Co.

(C.C.A.7th, 1942) 130 F.(2d) 535; Markham v. Kasper (C.C.A.7th,

1945) 152 F.(2d) 270; Hanney v. Franklin Fire Ins. Co. of

Philadelphia (C.C.A.9th, 1944) 142 F.(2d) 864; Toomey v. Toomey

(App.D.C. 1945) 149 F.(2d) 19.

In view of the difficulty thus disclosed, the Advisory Committee

in its two preliminary drafts of proposed amendments attempted to

redefine the original rule with particular stress upon the

interlocutory nature of partial judgments which did not adjudicate

all claims arising out of a single transaction or occurrence. This

attempt appeared to meet with almost universal approval from those

of the profession commenting upon it, although there were, of

course, helpful suggestions for additional changes in language or

clarification of detail. But cf. Circuit Judge Frank's dissenting

opinion in Libbey-Owens-Ford Glass Co. v. Sylvania Industrial

Corp., supra, n. 21 of the dissenting opinion. The Committee,

however, became convinced on careful study of its own proposals

that the seeds of ambiguity still remained, and that it had not

completely solved the problem of piecemeal appeals. After extended

consideration, it concluded that a retention of the older federal

rule was desirable, and that this rule needed only the exercise of

a discretionary power to afford a remedy in the infrequent harsh

case to provide a simple, definite, workable rule. This is afforded

by amended Rule 54(b). It re-establishes an ancient policy with

clarity and precision. For the possibility of staying execution

where not all claims are disposed of under Rule 54(b), see amended

Rule 62(h).

NOTES OF ADVISORY COMMITTEE ON RULES - 1961 AMENDMENT

This rule permitting appeal, upon the trial court's determination

of "no just reason for delay," from a judgment upon one or more but

fewer than all the claims in an action, has generally been given a

sympathetic construction by the courts and its validity is settled.

Reeves v. Beardall, 316 U.S. 283 (1942); Sears, Roebuck & Co. v.

Mackey, 351 U.S. 427 (1956); Cold Metal Process Co. v. United

Engineering & Foundry Co., 351 U.S. 445 (1956).

A serious difficulty has, however, arisen because the rule speaks

of claims but nowhere mentions parties. A line of cases has

developed in the circuits consistently holding the rule to be

inapplicable to the dismissal, even with the requisite trial court

determination, of one or more but fewer than all defendants jointly

charged in an action, i.e. charged with various forms of concerted

or related wrongdoing or related liability. See Mull v. Ackerman,

279 F.2d 25 (2d Cir. 1960); Richards v. Smith, 276 F.2d 652 (5th

Cir. 1960); Hardy v. Bankers Life & Cas. Co., 222 F.2d 827 (7th

Cir. 1955); Steiner v. 20th Century-Fox Film Corp., 220 F.2d 105

(9th Cir. 1955). For purposes of Rule 54(b) it was arguable that

there were as many "claims" as there were parties defendant and

that the rule in its present text applied where less than all of

the parties were dismissed, cf. United Artists Corp. v. Masterpiece

Productions, Inc., 221 F.2d 213, 215 (2d Cir. 1955); Bowling

Machines, Inc. v. First Nat. Bank, 283 F.2d 39 (1st Cir. 1960); but

the Courts of Appeals are now committed to an opposite view.

The danger of hardship through delay of appeal until the whole

action is concluded may be at least as serious in the

multiple-parties situations as in multiple-claims cases, see

Pabellon v. Grace Line, Inc., 191 F.2d 169, 179 (2d Cir. 1951),

cert. denied, 342 U.S. 893 (1951), and courts and commentators have

urged that Rule 54(b) be changed to take in the former. See Reagan

v. Traders & General Ins. Co., 255 F.2d 845 (5th Cir. 1958);

Meadows v. Greyhound Corp., 235 F.2d 233 (5th Cir. 1956); Steiner

v. 20th Century-Fox Film Corp., supra; 6 Moore's Federal Practice

¶ 54.34[2] (2d ed. 1953); 3 Barron & Holtzoff, Federal

Practice & Procedure Sec. 1193.2 (Wright ed. 1958); Developments in

the Law - Multiparty Litigation, 71 Harv.L.Rev. 874, 981 (1958);

Note, 62 Yale L.J. 263, 271 (1953); Ill.Ann.Stat. ch. 110, Sec.

50(2) (Smith-Hurd 1956). The amendment accomplishes this purpose by

referring explicitly to parties.

There has been some recent indication that interlocutory appeal

under the provisions of 28 U.S.C. Sec. 1292(b), added in 1958, may

now be available for the multiple-parties cases here considered.

See Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2d Cir.

1960). The Rule 54(b) procedure seems preferable for those cases,

and Sec. 1292(b) should be held inapplicable to them when the rule

is enlarged as here proposed. See Luckenbach Steamship Co., Inc.,

v. H. Muehlstein & Co., Inc., 280 F.2d 755, 757 (2d Cir. 1960); 1

Barron & Holtzoff, supra, Sec. 58.1, p. 321 (Wright ed. 1960).

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Subdivision (d). This revision adds paragraph (2) to this

subdivision to provide for a frequently recurring form of

litigation not initially contemplated by the rules - disputes over

the amount of attorneys' fees to be awarded in the large number of

actions in which prevailing parties may be entitled to such awards

or in which the court must determine the fees to be paid from a

common fund. This revision seeks to harmonize and clarify

procedures that have been developed through case law and local

rules.

Paragraph (1). Former subdivision (d), providing for taxation of

costs by the clerk, is renumbered as paragraph (1) and revised to

exclude applications for attorneys' fees.

Paragraph (2). This new paragraph establishes a procedure for

presenting claims for attorneys' fees, whether or not denominated

as "costs." It applies also to requests for reimbursement of

expenses, not taxable as costs, when recoverable under governing

law incident to the award of fees. Cf. West Virginia Univ. Hosp. v.

Casey, __ U.S. __ (1991), holding, prior to the Civil Rights Act of

1991, that expert witness fees were not recoverable under 42 U.S.C.

Sec. 1988. As noted in subparagraph (A), it does not, however,

apply to fees recoverable as an element of damages, as when sought

under the terms of a contract; such damages typically are to be

claimed in a pleading and may involve issues to be resolved by a

jury. Nor, as provided in subparagraph (E), does it apply to awards

of fees as sanctions authorized or mandated under these rules or

under 28 U.S.C. Sec. 1927.

Subparagraph (B) provides a deadline for motions for attorneys'

fees - 14 days after final judgment unless the court or a statute

specifies some other time. One purpose of this provision is to

assure that the opposing party is informed of the claim before the

time for appeal has elapsed. Prior law did not prescribe any

specific time limit on claims for attorneys' fees. White v. New

Hampshire Dep't of Employment Sec., 455 U.S. 445 (1982). In many

nonjury cases the court will want to consider attorneys' fee issues

immediately after rendering its judgment on the merits of the case.

Note that the time for making claims is specifically stated in some

legislation, such as the Equal Access to Justice Act, 28 U.S.C.

Sec. 2412(d)(1)(B) (30-day filing period).

Prompt filing affords an opportunity for the court to resolve fee

disputes shortly after trial, while the services performed are

freshly in mind. It also enables the court in appropriate

circumstances to make its ruling on a fee request in time for any

appellate review of a dispute over fees to proceed at the same time

as review on the merits of the case.

Filing a motion for fees under this subdivision does not affect

the finality or the appealability of a judgment, though revised

Rule 58 provides a mechanism by which prior to appeal the court can

suspend the finality to resolve a motion for fees. If an appeal on

the merits of the case is taken, the court may rule on the claim

for fees, may defer its ruling on the motion, or may deny the

motion without prejudice, directing under subdivision (d)(2)(B) a

new period for filing after the appeal has been resolved. A notice

of appeal does not extend the time for filing a fee claim based on

the initial judgment, but the court under subdivision (d)(2)(B) may

effectively extend the period by permitting claims to be filed

after resolution of the appeal. A new period for filing will

automatically begin if a new judgment is entered following a

reversal or remand by the appellate court or the granting of a

motion under Rule 59.

The rule does not require that the motion be supported at the

time of filing with the evidentiary material bearing on the fees.

This material must of course be submitted in due course, according

to such schedule as the court may direct in light of the

circumstances of the case. What is required is the filing of a

motion sufficient to alert the adversary and the court that there

is a claim for fees and the amount of such fees (or a fair

estimate).

If directed by the court, the moving party is also required to

disclose any fee agreement, including those between attorney and

client, between attorneys sharing a fee to be awarded, and between

adversaries made in partial settlement of a dispute where the

settlement must be implemented by court action as may be required

by Rules 23(e) and 23.1 or other like provisions. With respect to

the fee arrangements requiring court approval, the court may also

by local rule require disclosure immediately after such

arrangements are agreed to. E.g., Rule 5 of United States District

Court for the Eastern District of New York; cf. In re "Agent

Orange" Product Liability Litigation (MDL 381), 611 F. Supp. 1452,

1464 (E.D.N.Y. 1985).

In the settlement of class actions resulting in a common fund

from which fees will be sought, courts frequently have required

that claims for fees be presented in advance of hearings to

consider approval of the proposed settlement. The rule does not

affect this practice, as it permits the court to require

submissions of fee claims in advance of entry of judgment.

Subparagraph (C) assures the parties of an opportunity to make an

appropriate presentation with respect to issues involving the

evaluation of legal services. In some cases, an evidentiary hearing

may be needed, but this is not required in every case. The amount

of time to be allowed for the preparation of submissions both in

support of and in opposition to awards should be tailored to the

particular case.

The court is explicitly authorized to make a determination of the

liability for fees before receiving submissions by the parties

bearing on the amount of an award. This option may be appropriate

in actions in which the liability issue is doubtful and the

evaluation issues are numerous and complex.

The court may order disclosure of additional information, such as

that bearing on prevailing local rates or on the appropriateness of

particular services for which compensation is sought.

On rare occasion, the court may determine that discovery under

Rules 26-37 would be useful to the parties. Compare Rules Governing

Section 2254 Cases in the U.S. District Courts, Rule 6. See Note,

Determining the Reasonableness of Attorneys' Fees - the

Discoverability of Billing Records, 64 B.U.L. Rev. 241 (1984). In

complex fee disputes, the court may use case management techniques

to limit the scope of the dispute or to facilitate the settlement

of fee award disputes.

Fee awards should be made in the form of a separate judgment

under Rule 58 since such awards are subject to review in the court

of appeals. To facilitate review, the paragraph provides that the

court set forth its findings and conclusions as under Rule 52(a),

though in most cases this explanation could be quite brief.

Subparagraph (D) explicitly authorizes the court to establish

procedures facilitating the efficient and fair resolution of fee

claims. A local rule, for example, might call for matters to be

presented through affidavits, or might provide for issuance of

proposed findings by the court, which would be treated as accepted

by the parties unless objected to within a specified time. A court

might also consider establishing a schedule reflecting customary

fees or factors affecting fees within the community, as implicitly

suggested by Justice O'Connor in Pennsylvania v. Delaware Valley

Citizens' Council, 483 U.S. 711, 733 (1987) (O'Connor, J.,

concurring) (how particular markets compensate for contingency).

Cf. Thompson v. Kennickell, 710 F. Supp. 1 (D.D.C. 1989) (use of

findings in other cases to promote consistency). The parties, of

course, should be permitted to show that in the circumstances of

the case such a schedule should not be applied or that different

hourly rates would be appropriate.

The rule also explicitly permits, without need for a local rule,

the court to refer issues regarding the amount of a fee award in a

particular case to a master under Rule 53. The district judge may

designate a magistrate judge to act as a master for this purpose or

may refer a motion for attorneys' fees to a magistrate judge for

proposed findings and recommendations under Rule 72(b). This

authorization eliminates any controversy as to whether such

references are permitted under Rule 53(b) as "matters of account

and of difficult computation of damages" and whether motions for

attorneys' fees can be treated as the equivalent of a dispositive

pretrial matter that can be referred to a magistrate judge. For

consistency and efficiency, all such matters might be referred to

the same magistrate judge.

Subparagraph (E) excludes from this rule the award of fees as

sanctions under these rules or under 28 U.S.C. Sec. 1927.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Subdivision (d)(2)(C) is amended to delete the requirement that

judgment on a motion for attorney fees be set forth in a separate

document. This change complements the amendment of Rule 58(a)(1),

which deletes the separate document requirement for an order

disposing of a motion for attorney fees under Rule 54. These

changes are made to support amendment of Rule 4 of the Federal

Rules of Appellate Procedure. It continues to be important that a

district court make clear its meaning when it intends an order to

be the final disposition of a motion for attorney fees.

The requirement in subdivision (d)(2)(B) that a motion for

attorney fees be not only filed but also served no later than 14

days after entry of judgment is changed to require filing only, to

establish a parallel with Rules 50, 52, and 59. Service continues

to be required under Rule 5(a).

-End-

-CITE-

28 USC APPENDIX Rule 55 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VII. JUDGMENT

-HEAD-

Rule 55. Default

-STATUTE-

(a) Entry. When a party against whom a judgment for affirmative

relief is sought has failed to plead or otherwise defend as

provided by these rules and that fact is made to appear by

affidavit or otherwise, the clerk shall enter the party's default.

(b) Judgment. Judgment by default may be entered as follows:

(1) By the Clerk. When the plaintiff's claim against a

defendant is for a sum certain or for a sum which can by

computation be made certain, the clerk upon request of the

plaintiff and upon affidavit of the amount due shall enter

judgment for that amount and costs against the defendant, if the

defendant has been defaulted for failure to appear and is not an

infant or incompetent person.

(2) By the Court. In all other cases the party entitled to a

judgment by default shall apply to the court therefor; but no

judgment by default shall be entered against an infant or

incompetent person unless represented in the action by a general

guardian, committee, conservator, or other such representative

who has appeared therein. If the party against whom judgment by

default is sought has appeared in the action, the party (or, if

appearing by representative, the party's representative) shall be

served with written notice of the application for judgment at

least 3 days prior to the hearing on such application. If, in

order to enable the court to enter judgment or to carry it into

effect, it is necessary to take an account or to determine the

amount of damages or to establish the truth of any averment by

evidence or to make an investigation of any other matter, the

court may conduct such hearings or order such references as it

deems necessary and proper and shall accord a right of trial by

jury to the parties when and as required by any statute of the

United States.

(c) Setting Aside Default. For good cause shown the court may set

aside an entry of default and, if a judgment by default has been

entered, may likewise set it aside in accordance with Rule 60(b).

(d) Plaintiffs, Counterclaimants, Cross-Claimants. The provisions

of this rule apply whether the party entitled to the judgment by

default is a plaintiff, a third-party plaintiff, or a party who has

pleaded a cross-claim or counterclaim. In all cases a judgment by

default is subject to the limitations of Rule 54(c).

(e) Judgment Against the United States. No judgment by default

shall be entered against the United States or an officer or agency

thereof unless the claimant establishes a claim or right to relief

by evidence satisfactory to the court.

-SOURCE-

(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

This represents the joining of the equity decree pro confesso

([former] Equity Rules 12 (Issue of Subpoena - Time for Answer), 16

(Defendant to Answer - Default - Decree Pro Confesso), 17 (Decree

Pro Confesso to be Followed by Final Decree - Setting Aside

Default), 29 (Defenses - How Presented), 31 (Reply - When Required

- When Cause at Issue)) and the judgment by default now governed by

U.S.C., Title 28, [former] Sec. 724 (Conformity act). For dismissal

of an action for failure to comply with these rules or any order of

the court, see rule 41(b).

Note to Subdivision (a). The provision for the entry of default

comes from the Massachusetts practice, 2 Mass.Gen.Laws (Ter.Ed.,

1932) ch. 231, Sec. 57. For affidavit of default, see 2 Minn.Stat.

(Mason, 1927) Sec. 9256.

Note to Subdivision (b). The provision in paragraph (1) for the

entry of judgment by the clerk when plaintiff claims a sum certain

is found in the N.Y.C.P.A. (1937) Sec. 485, in Calif.Code Civ.Proc.

(Deering, 1937) Sec. 585(1), and in Conn.Practice Book (1934) Sec.

47. For provisions similar to paragraph (2), compare Calif.Code,

supra, Sec. 585(2); N.Y.C.P.A. (1937) Sec. 490; 2 Minn.Stat.

(Mason, 1927) Sec. 9256(3); 2 Wash.Rev.Stat.Ann. (Remington, 1932)

Sec. 411(2). U.S.C., Title 28, Sec. 785 (Action to recover

forfeiture in bond) and similar statutes are preserved by the last

clause of paragraph (2).

Note to Subdivision (e). This restates substantially the last

clause of U.S.C., Title 28, [former] Sec. 763 (Action against the

United States under the Tucker Act). As this rule governs in all

actions against the United States, U.S.C., Title 28, [former] Sec.

45 (Practice and procedure in certain cases under the interstate

commerce laws) and similar statutes are modified insofar as they

contain anything inconsistent therewith.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 SUPPLEMENTARY NOTE

Note. The operation of Rule 55(b) (Judgment) is directly affected

by the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C.

[App.] Sec. 501 et seq.). Section 200 of the Act [50 U.S.C.

Appendix, Sec. 520] imposes specific requirements which must be

fulfilled before a default judgment can be entered (e.g., Ledwith

v. Storkan (D.Neb. 1942) 6 Fed.Rules Serv. 60b.24, Case 2, 2 F.R.D.

539, and also provides for the vacation of a judgment in certain

circumstances. See discussion in Commentary, Effect of Conscription

Legislation on the Federal Rules (1940) 3 Fed.Rules Serv. 725; 3

Moore's Federal Practice (1938) Cum.Supplement Sec. 55.02.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 56 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VII. JUDGMENT

-HEAD-

Rule 56. Summary Judgment

-STATUTE-

(a) For Claimant. A party seeking to recover upon a claim,

counterclaim, or cross-claim or to obtain a declaratory judgment

may, at any time after the expiration of 20 days from the

commencement of the action or after service of a motion for summary

judgment by the adverse party, move with or without supporting

affidavits for a summary judgment in the party's favor upon all or

any part thereof.

(b) For Defending Party. A party against whom a claim,

counterclaim, or cross-claim is asserted or a declaratory judgment

is sought may, at any time, move with or without supporting

affidavits for a summary judgment in the party's favor as to all or

any part thereof.

(c) Motion and Proceedings Thereon. The motion shall be served at

least 10 days before the time fixed for the hearing. The adverse

party prior to the day of hearing may serve opposing affidavits.

The judgment sought shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law. A summary judgment, interlocutory

in character, may be rendered on the issue of liability alone

although there is a genuine issue as to the amount of damages.

(d) Case Not Fully Adjudicated on Motion. If on motion under this

rule judgment is not rendered upon the whole case or for all the

relief asked and a trial is necessary, the court at the hearing of

the motion, by examining the pleadings and the evidence before it

and by interrogating counsel, shall if practicable ascertain what

material facts exist without substantial controversy and what

material facts are actually and in good faith controverted. It

shall thereupon make an order specifying the facts that appear

without substantial controversy, including the extent to which the

amount of damages or other relief is not in controversy, and

directing such further proceedings in the action as are just. Upon

the trial of the action the facts so specified shall be deemed

established, and the trial shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony; Defense Required.

Supporting and opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein. Sworn or

certified copies of all papers or parts thereof referred to in an

affidavit shall be attached thereto or served therewith. The court

may permit affidavits to be supplemented or opposed by depositions,

answers to interrogatories, or further affidavits. When a motion

for summary judgment is made and supported as provided in this

rule, an adverse party may not rest upon the mere allegations or

denials of the adverse party's pleading, but the adverse party's

response, by affidavits or as otherwise provided in this rule, must

set forth specific facts showing that there is a genuine issue for

trial. If the adverse party does not so respond, summary judgment,

if appropriate, shall be entered against the adverse party.

(f) When Affidavits Are Unavailable. Should it appear from the

affidavits of a party opposing the motion that the party cannot for

reasons stated present by affidavit facts essential to justify the

party's opposition, the court may refuse the application for

judgment or may order a continuance to permit affidavits to be

obtained or depositions to be taken or discovery to be had or may

make such other order as is just.

(g) Affidavits Made in Bad Faith. Should it appear to the

satisfaction of the court at any time that any of the affidavits

presented pursuant to this rule are presented in bad faith or

solely for the purpose of delay, the court shall forthwith order

the party employing them to pay to the other party the amount of

the reasonable expenses which the filing of the affidavits caused

the other party to incur, including reasonable attorney's fees, and

any offending party or attorney may be adjudged guilty of contempt.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.

July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

This rule is applicable to all actions, including those against

the United States or an officer or agency thereof.

Summary judgment procedure is a method for promptly disposing of

actions in which there is no genuine issue as to any material fact.

It has been extensively used in England for more than 50 years and

has been adopted in a number of American states. New York, for

example, has made great use of it. During the first nine years

after its adoption there, the records of New York county alone show

5,600 applications for summary judgments. Report of the Commission

on the Administration of Justice in New York State (1934), p. 383.

See also Third Annual Report of the Judicial Council of the State

of New York (1937), p. 30.

In England it was first employed only in cases of liquidated

claims, but there has been a steady enlargement of the scope of the

remedy until it is now used in actions to recover land or chattels

and in all other actions at law, for liquidated or unliquidated

claims, except for a few designated torts and breach of promise of

marriage. English Rules Under the Judicature Act (The Annual

Practice, 1937) O. 3, r. 6; Orders 14, 14A, and 15; see also O. 32,

r. 6, authorizing an application for judgment at any time upon

admissions. In Michigan (3 Comp.Laws (1929) Sec. 14260) and

Illinois (Ill.Rev.Stat. (1937) ch. 110, Secs. 181, 259.15, 259.16),

it is not limited to liquidated demands. New York (N.Y.R.C.P.

(1937) Rule 113; see also Rule 107) has brought so many classes of

actions under the operation of the rule that the Commission on

Administration of Justice in New York State (1934) recommend that

all restrictions be removed and that the remedy be available "in

any action" (p. 287). For the history and nature of the summary

judgment procedure and citations of state statutes, see Clark and

Samenow, The Summary Judgment (1929), 38 Yale L.J. 423.

Note to Subdivision (d). See Rule 16 (Pre-Trial Procedure;

Formulating Issues) and the Note thereto.

Note to Subdivisions (e) and (f). These are similar to rules in

Michigan. Mich.Court Rules Ann. (Searl, 1933) Rule 30.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Subdivision (a). The amendment allows a claimant to move for a

summary judgment at any time after the expiration of 20 days from

the commencement of the action or after service of a motion for

summary judgment by the adverse party. This will normally operate

to permit an earlier motion by the claimant than under the original

rule, where the phrase "at any time after the pleading in answer

thereto has been served" operates to prevent a claimant from moving

for summary judgment, even in a case clearly proper for its

exercise, until a formal answer has been filed. Thus in Peoples

Bank v. Federal Reserve Bank of San Francisco (N.D.Cal. 1944) 58

F.Supp. 25, the plaintiff's counter-motion for a summary judgment

was stricken as premature, because the defendant had not filed an

answer. Since Rule 12(a) allows at least 20 days for an answer,

that time plus the 10 days required in Rule 56(c) means that under

original Rule 56(a) a minimum period of 30 days necessarily has to

elapse in every case before the claimant can be heard on his right

to a summary judgment. An extension of time by the court or the

service of preliminary motions of any kind will prolong that period

even further. In many cases this merely represents unnecessary

delay. See United States v. Adler's Creamery, Inc. (C.C.A.2d, 1939)

107 F.(2d) 987. The changes are in the interest of more expeditious

litigation. The 20-day period, as provided, gives the defendant an

opportunity to secure counsel and determine a course of action. But

in a case where the defendant himself serves a motion for summary

judgment within that time, there is no reason to restrict the

plaintiff and the amended rule so provides.

Subdivision (c). The amendment of Rule 56(c), by the addition of

the final sentence, resolves a doubt expressed in Sartor v.

Arkansas Natural Gas Corp. (1944) 321 U.S. 620. See also

Commentary, Summary Judgment as to Damages (1944) 7 Fed.Rules Serv.

974; Madeirense Do Brasil S/A v. Stulman-Emrick Lumber Co.

(C.C.A.2d, 1945) 147 F.(2d) 399, cert. den. (1945) 325 U.S. 861. It

makes clear that although the question of recovery depends on the

amount of damages, the summary judgment rule is applicable and

summary judgment may be granted in a proper case. If the case is

not fully adjudicated it may be dealt with as provided in

subdivision (d) of Rule 56, and the right to summary recovery

determined by a preliminary order, interlocutory in character, and

the precise amount of recovery left for trial.

Subdivision (d). Rule 54(a) defines "judgment" as including a

decree and "any order from which an appeal lies." Subdivision (d)

of Rule 56 indicates clearly, however, that a partial summary

"judgment" is not a final judgment, and, therefore, that it is not

appealable, unless in the particular case some statute allows an

appeal from the interlocutory order involved. The partial summary

judgment is merely a pretrial adjudication that certain issues

shall be deemed established for the trial of the case. This

adjudication is more nearly akin to the preliminary order under

Rule 16, and likewise serves the purpose of speeding up litigation

by eliminating before trial matters wherein there is no genuine

issue of fact. See Leonard v. Socony-Vacuum Oil Co. (C.C.A.7th,

1942) 130 F.(2d) 535; Biggins v. Oltmer Iron Works (C.C.A.7th,

1946) 154 F.(2d) 214; 3 Moore's Federal Practice (1938). 3190-3192.

Since interlocutory appeals are not allowed, except where

specifically provided by statute (see 3 Moore, op. cit. supra,

3155-3156) this interpretation is in line with that policy, Leonard

v. Socony-Vacuum Oil Co., supra. See also Audi Vision Inc., v. RCA

Mfg. Co. (C.C.A.2d, 1943) 136 F.(2d) 621; Toomey v. Toomey

(App.D.C. 1945) 149 F.(2d) 19; Biggins v. Oltmer Iron Works, supra;

Catlin v. United States (1945) 324 U.S. 229.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

Subdivision (c). By the amendment "answers to interrogatories"

are included among the materials which may be considered on motion

for summary judgment. The phrase was inadvertently omitted from the

rule, see 3 Barron & Holtzoff, Federal Practice and Procedure

159-60 (Wright ed. 1958), and the courts have generally reached by

interpretation the result which will hereafter be required by the

text of the amended rule. See Annot., 74 A.L.R.2d 984 (1960).

Subdivision (e). The words "answers to interrogatories" are added

in the third sentence of this subdivision to conform to the

amendment of subdivision (c).

The last two sentences are added to overcome a line of cases,

chiefly in the Third Circuit, which has impaired the utility of the

summary judgment device. A typical case is as follows: A party

supports his motion for summary judgment by affidavits or other

evidentiary matters sufficient to show that there is no genuine

issue as to a material fact. The adverse party, in opposing the

motion, does not produce any evidentiary matter, or produces some

but not enough to establish that there is a genuine issue for

trial. Instead, the adverse party rests on averments of his

pleadings which on their face present an issue. In this situation

Third Circuit cases have taken the view that summary judgment must

be denied, at least if the averments are "well-pleaded," and not

suppositious, conclusory, or ultimate. See Frederick Hart & Co.,

Inc. v. Recordgraph Corp., 169 F.2d 580 (3d Cir. 1948); United

States ex rel. Kolton v. Halpern, 260 F.2d 590 (3d Cir. 1958);

United States ex rel. Nobles v. Ivey Bros. Constr. Co., Inc., 191

F.Supp. 383 (D.Del. 1961); Jamison v. Pennsylvania Salt Mfg. Co.,

22 F.R.D. 238 (W.D.Pa. 1958); Bunny Bear, Inc. v. Dennis Mitchell

Industries, 139 F.Supp. 542 (E.D.Pa. 1956); Levy v. Equitable Life

Assur. Society, 18 F.R.D. 164 (E.D.Pa. 1955).

The very mission of the summary judgment procedure is to pierce

the pleadings and to assess the proof in order to see whether there

is a genuine need for trial. The Third Circuit doctrine, which

permits the pleadings themselves to stand in the way of granting an

otherwise justified summary judgment, is incompatible with the

basic purpose of the rule. See 6 Moore's Federal Practice 2069 (2d

ed. 1953); 3 Barron & Holtzoff, supra, Sec. 1235.1.

It is hoped that the amendment will contribute to the more

effective utilization of the salutary device of summary judgment.

The amendment is not intended to derogate from the solemnity of

the pleadings. Rather it recognizes that, despite the best efforts

of counsel to make his pleadings accurate, they may be

overwhelmingly contradicted by the proof available to his

adversary.

Nor is the amendment designed to affect the ordinary standards

applicable to the summary judgment motion. So, for example: Where

an issue as to a material fact cannot be resolved without

observation of the demeanor of witnesses in order to evaluate their

credibility, summary judgment is not appropriate. Where the

evidentiary matter in support of the motion does not establish the

absence of a genuine issue, summary judgment must be denied even if

no opposing evidentiary matter is presented. And summary judgment

may be inappropriate where the party opposing it shows under

subdivision (f) that he cannot at the time present facts essential

to justify his opposition.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 57 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VII. JUDGMENT

-HEAD-

Rule 57. Declaratory Judgments

-STATUTE-

The procedure for obtaining a declaratory judgment pursuant to

Title 28, U.S.C., Sec. 2201, shall be in accordance with these

rules, and the right to trial by jury may be demanded under the

circumstances and in the manner provided in Rules 38 and 39. The

existence of another adequate remedy does not preclude a judgment

for declaratory relief in cases where it is appropriate. The court

may order a speedy hearing of an action for a declaratory judgment

and may advance it on the calendar.

-SOURCE-

(As amended Dec. 29, 1948, eff. Oct. 20, 1949.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

The fact that a declaratory judgment may be granted "whether or

not further relief is or could be prayed" indicates that

declaratory relief is alternative or cumulative and not exclusive

or extraordinary. A declaratory judgment is appropriate when it

will "terminate the controversy" giving rise to the proceeding.

Inasmuch as it often involves only an issue of law on undisputed or

relatively undisputed facts, it operates frequently as a summary

proceeding, justifying docketing the case for early hearing as on a

motion, as provided for in California (Code Civ.Proc. (Deering,

1937) Sec. 1062a), Michigan (3 Comp.Laws (1929) Sec. 13904), and

Kentucky (Codes (Carroll, 1932) Civ.Pract. Sec. 639a-3).

The "controversy" must necessarily be "of a justiciable nature,

thus excluding an advisory decree upon a hypothetical state of

facts." Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 325,

56 S.Ct. 466, 473, 80 L.Ed. 688, 699 (1936). The existence or

nonexistence of any right, duty, power, liability, privilege,

disability, or immunity or of any fact upon which such legal

relations depend, or of a status, may be declared. The petitioner

must have a practical interest in the declaration sought and all

parties having an interest therein or adversely affected must be

made parties or be cited. A declaration may not be rendered if a

special statutory proceeding has been provided for the adjudication

of some special type of case, but general ordinary or extraordinary

legal remedies, whether regulated by statute or not, are not deemed

special statutory proceedings.

When declaratory relief will not be effective in settling the

controversy, the court may decline to grant it. But the fact that

another remedy would be equally effective affords no ground for

declining declaratory relief. The demand for relief shall state

with precision the declaratory judgment desired, to which may be

joined a demand for coercive relief, cumulatively or in the

alternative; but when coercive relief only is sought but is deemed

ungrantable or inappropriate, the court may sua sponte, if it

serves a useful purpose, grant instead a declaration of rights.

Hasselbring v. Koepke, 263 Mich. 466, 248 N.W. 869, 93 A.L.R. 1170

(1933). Written instruments, including ordinances and statutes, may

be construed before or after breach at the petition of a properly

interested party, process being served on the private parties or

public officials interested. In other respects the Uniform

Declaratory Judgment Act affords a guide to the scope and function

of the Federal act. Compare Aetna Life Insurance Co. v. Haworth,

300 U.S. 227, 57 S.Ct. 461 (1937); Nashville, Chattanooga & St.

Louis Ry. v. Wallace, 288 U.S. 249 (1933); Gully, Tax Collector v.

Interstate Natural Gas Co., 82 F.(2d) 145 (C.C.A.5th, 1936); Ohio

Casualty Ins. Co. v. Plummer, 13 F.Supp. 169 (S.D.Tex., 1935);

Borchard, Declaratory Judgments (1934), passim.

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

The amendment substitutes the present statutory reference.

-End-

-CITE-

28 USC APPENDIX Rule 58 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VII. JUDGMENT

-HEAD-

Rule 58. Entry of Judgment

-STATUTE-

(a) Separate Document.

(1) Every judgment and amended judgment must be set forth on a

separate document, but a separate document is not required for an

order disposing of a motion:

(A) for judgment under Rule 50(b);

(B) to amend or make additional findings of fact under Rule

52(b);

(C) for attorney fees under Rule 54;

(D) for a new trial, or to alter or amend the judgment, under

Rule 59; or

(E) for relief under Rule 60.

(2) Subject to Rule 54(b):

(A) unless the court orders otherwise, the clerk must,

without awaiting the court's direction, promptly prepare, sign,

and enter the judgment when:

(i) the jury returns a general verdict,

(ii) the court awards only costs or a sum certain, or

(iii) the court denies all relief;

(B) the court must promptly approve the form of the judgment,

which the clerk must promptly enter, when:

(i) the jury returns a special verdict or a general verdict

accompanied by interrogatories, or

(ii) the court grants other relief not described in Rule

58(a)(2).

(b) Time of Entry. Judgment is entered for purposes of these

rules:

(1) if Rule 58(a)(1) does not require a separate document, when

it is entered in the civil docket under Rule 79(a), and

(2) if Rule 58(a)(1) requires a separate document, when it is

entered in the civil docket under Rule 79(a) and when the earlier

of these events occurs:

(A) when it is set forth on a separate document, or

(B) when 150 days have run from entry in the civil docket

under Rule 79(a).

(c) Cost or Fee Awards.

(1) Entry of judgment may not be delayed, nor the time for

appeal extended, in order to tax costs or award fees, except as

provided in Rule 58(c)(2).

(2) When a timely motion for attorney fees is made under Rule

54(d)(2), the court may act before a notice of appeal has been

filed and has become effective to order that the motion have the

same effect under Federal Rule of Appellate Procedure 4(a)(4) as

a timely motion under Rule 59.

(d) Request for Entry. A party may request that judgment be set

forth on a separate document as required by Rule 58(a)(1).

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.

July 1, 1963; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff.

Dec. 1, 2002.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

See Wis.Stat. (1935) Sec. 270.31 (judgment entered forthwith on

verdict of jury unless otherwise ordered), Sec. 270.65 (where trial

is by the court, entered by direction of the court), Sec. 270.63

(entered by clerk on judgment on admitted claim for money). Compare

1 Idaho Code Ann. (1932) Sec. 7-1101, and 4 Mont.Rev.Codes Ann.

(1935) Sec. 9403, which provides that judgment in jury cases be

entered by clerk within 24 hours after verdict unless court

otherwise directs. Conn. Practice Book (1934) Sec. 200, provides

that all judgments shall be entered within one week after

rendition. In some States such as Washington, 2 Rev.Stat.Ann.

(Remington, 1932) Sec. 431, in jury cases the judgment is entered

two days after the return of verdict to give time for making motion

for new trial; Sec. 435 (ibid.), provides that all judgments shall

be entered by the clerk, subject to the court's direction.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

The reference to Rule 54(b) is made necessary by the amendment of

that rule.

Two changes have been made in Rule 58 in order to clarify the

practice. The substitution of the more inclusive phrase "all relief

be denied" for the words "there be no recovery", makes it clear

that the clerk shall enter the judgment forthwith in the situations

specified without awaiting the filing of a formal judgment approved

by the court. The phrase "all relief be denied" covers cases such

as the denial of a bankrupt's discharge and similar situations

where the relief sought is refused but there is literally no denial

of a "recovery".

The addition of the last sentence in the rule emphasizes that

judgments are to be entered promptly by the clerk without waiting

for the taxing of costs. Certain district court rules, for example,

Civil Rule 22 of the Southern District of New York - until its

annulment Oct. 1, 1945, for conflict with this rule - and the like

rule of the Eastern District of New York, are expressly in conflict

with this provision, although the federal law is of long standing

and well settled. Fowler v. Hamill (1891) 139 U.S. 549; Craig v.

The Hartford (C.C.Cal. 1856) Fed.Case No. 3,333; Tuttle v. Claflin

(C.C.A.2d, 1895) 60 Fed. 7, cert. den. (1897) 166 U.S. 721;

Prescott & A. C. Ry. Co. v. Atchison, T. & S. F. R. Co. (C.C.A.2d,

1897) 84 Fed. 213; Stallo v. Wagner (C.C.A.2d, 1917) 245 Fed. 636,

639-40; Brown v. Parker (C.C.A.8th, 1899) 97 Fed. 446;

Allis-Chalmers v. United States (C.C.A.7th, 1908) 162 Fed. 679. And

this applies even though state law is to the contrary. United

States v. Nordbye (C.C.A.8th, 1935) 75 F.(2d) 744, 746, cert. den.

(1935) 296 U.S. 572. Inasmuch as it has been held that failure of

the clerk thus enter judgment is a "misprision" "not to be excused"

(The Washington (C.C.A.2d, 1926) 16 F.(2d) 206), such a district

court rule may have serious consequences for a district court

clerk. Rules of this sort also provide for delay in entry of the

judgment contrary to Rule 58. See Commissioner of Internal Revenue

v. Bedford's Estate (1945) 325 U.S. 283.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

Under the present rule a distinction has sometimes been made

between judgments on general jury verdicts, on the one hand, and,

on the other, judgments upon decisions of the court that a party

shall recover only money or costs or that all relief shall be

denied. In the first situation, it is clear that the clerk should

enter the judgment without awaiting a direction by the court unless

the court otherwise orders. In the second situation it was intended

that the clerk should similarly enter the judgment forthwith upon

the court's decision; but because of the separate listing in the

rule, and the use of the phrase "upon receipt . . . of the

direction," the rule has sometimes been interpreted as requiring

the clerk to await a separate direction of the court. All these

judgments are usually uncomplicated, and should be handled in the

same way. The amended rule accordingly deals with them as a single

group in clause (1) (substituting the expression "only a sum

certain" for the present expression "only money"), and requires the

clerk to prepare, sign, and enter them forthwith, without awaiting

court direction, unless the court makes a contrary order. (The

clerk's duty is ministerial and may be performed by a deputy clerk

in the name of the clerk. See 28 U.S.C. Sec. 956; cf. Gilbertson v.

United States, 168 Fed. 672 (7th Cir. 1909).) The more complicated

judgments described in clause (2) must be approved by the court

before they are entered.

Rule 58 is designed to encourage all reasonable speed in

formulating and entering the judgment when the case has been

decided. Participation by the attorneys through the submission of

forms of judgment involves needless expenditure of time and effort

and promotes delay, except in special cases where counsel's

assistance can be of real value. See Matteson v. United States, 240

F.2d 517, 518-19 (2d Cir. 1956). Accordingly, the amended rule

provides that attorneys shall not submit forms of judgment unless

directed to do so by the court. This applies to the judgments

mentioned in clause (2) as well as clause (1).

Hitherto some difficulty has arisen, chiefly where the court has

written an opinion or memorandum containing some apparently

directive or dispositive words, e.g., "the plaintiff's motion [for

summary judgment] is granted," see United States v. F. & M.

Schaefer Brewing Co., 356 U.S. 227, 229, 78 S.Ct. 674, 2 L.Ed.2d

721 (1958). Clerks on occasion have viewed these opinions or

memoranda as being in themselves a sufficient basis for entering

judgment in the civil docket as provided by Rule 79(a). However,

where the opinion or memorandum has not contained all the elements

of a judgment, or where the judge has later signed a formal

judgment, it has become a matter of doubt whether the purported

entry of judgment was effective, starting the time running for

postverdict motions and for the purpose of appeal. See id.; and

compare Blanchard v. Commonwealth Oil Co., 294 F.2d 834 (5th Cir.

1961); United States v. Higginson, 238 F.2d 439 (1st Cir. 1956);

Danzig v. Virgin Isle Hotel, Inc., 278 F.2d 580 (3d Cir. 1960);

Sears v. Austin, 282 F.2d 340 (9th Cir. 1960), with Matteson v.

United States, supra; Erstling v. Southern Bell Tel. & Tel. Co.,

255 F.2d 93 (5th Cir. 1958); Barta v. Oglala Sioux Tribe, 259 F.2d

553 (8th Cir. 1958), cert. denied, 358 U.S. 932, 79 S.Ct. 320, 3

L.Ed.2d 304 (1959); Beacon Fed. S. & L. Assn. v. Federal Home L.

Bank Bd., 266 F.2d 246 (7th Cir.), cert. denied, 361 U.S. 823, 80

S.Ct. 70, 4 L.Ed.2d 67 (1959); Ram v. Paramount Film D. Corp., 278

F.2d 191 (4th Cir. 1960).

The amended rule eliminates these uncertainties by requiring that

there be a judgment set out on a separate document - distinct from

any opinion or memorandum - which provides the basis for the entry

of judgment. That judgments shall be on separate documents is also

indicated in Rule 79(b); and see General Rule 10 of the U.S.

District Courts for the Eastern and Southern Districts of New York;

Ram v. Paramount Film D. Corp., supra, at 194.

See the amendment of Rule 79(a) and the new specimen forms of

judgment, Forms 31 and 32.

See also Rule 55(b)(1) and (2) covering the subject of judgments

by default.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Ordinarily the pendency or post-judgment filing of a claim for

attorney's fees will not affect the time for appeal from the

underlying judgment. See Budinich v. Becton Dickinson & Co., 486

U.S. 196 (1988). Particularly if the claim for fees involves

substantial issues or is likely to be affected by the appellate

decision, the district court may prefer to defer consideration of

the claim for fees until after the appeal is resolved. However, in

many cases it may be more efficient to decide fee questions before

an appeal is taken so that appeals relating to the fee award can be

heard at the same time as appeals relating to the merits of the

case. This revision permits, but does not require, the court to

delay the finality of the judgment for appellate purposes under

revised Fed. R. App. P. 4(a) until the fee dispute is decided. To

accomplish this result requires entry of an order by the district

court before the time a notice of appeal becomes effective for

appellate purposes. If the order is entered, the motion for

attorney's fees is treated in the same manner as a timely motion

under Rule 59.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Rule 58 has provided that a judgment is effective only when set

forth on a separate document and entered as provided in Rule 79(a).

This simple separate document requirement has been ignored in many

cases. The result of failure to enter judgment on a separate

document is that the time for making motions under Rules 50, 52,

54(d)(2)(B), 59, and some motions under Rule 60, never begins to

run. The time to appeal under Appellate Rule 4(a) also does not

begin to run. There have been few visible problems with respect to

Rule 50, 52, 54(d)(2)(B), 59, or 60 motions, but there have been

many and horridly confused problems under Appellate Rule 4(a).

These amendments are designed to work in conjunction with Appellate

Rule 4(a) to ensure that appeal time does not linger on

indefinitely, and to maintain the integration of the time periods

set for Rules 50, 52, 54(d)(2)(B), 59, and 60 with Appellate Rule

4(a).

Rule 58(a) preserves the core of the present separate document

requirement, both for the initial judgment and for any amended

judgment. No attempt is made to sort through the confusion that

some courts have found in addressing the elements of a separate

document. It is easy to prepare a separate document that recites

the terms of the judgment without offering additional explanation

or citation of authority. Forms 31 and 32 provide examples.

Rule 58 is amended, however, to address a problem that arises

under Appellate Rule 4(a). Some courts treat such orders as those

that deny a motion for new trial as a "judgment," so that appeal

time does not start to run until the order is entered on a separate

document. Without attempting to address the question whether such

orders are appealable, and thus judgments as defined by Rule 54(a),

the amendment provides that entry on a separate document is not

required for an order disposing of the motions listed in Appellate

Rule 4(a). The enumeration of motions drawn from the Appellate Rule

4(a) list is generalized by omitting details that are important for

appeal time purposes but that would unnecessarily complicate the

separate document requirement. As one example, it is not required

that any of the enumerated motions be timely. Many of the

enumerated motions are frequently made before judgment is entered.

The exemption of the order disposing of the motion does not excuse

the obligation to set forth the judgment itself on a separate

document. And if disposition of the motion results in an amended

judgment, the amended judgment must be set forth on a separate

document.

Rule 58(b) discards the attempt to define the time when a

judgment becomes "effective." Taken in conjunction with the Rule

54(a) definition of a judgment to include "any order from which an

appeal lies," the former Rule 58 definition of effectiveness could

cause strange difficulties in implementing pretrial orders that are

appealable under interlocutory appeal provisions or under expansive

theories of finality. Rule 58(b) replaces the definition of

effectiveness with a new provision that defines the time when

judgment is entered. If judgment is promptly set forth on a

separate document, as should be done when required by Rule

58(a)(1), the new provision will not change the effect of Rule 58.

But in the cases in which court and clerk fail to comply with this

simple requirement, the motion time periods set by Rules 50, 52,

54, 59, and 60 begin to run after expiration of 150 days from entry

of the judgment in the civil docket as required by Rule 79(a).

A companion amendment of Appellate Rule 4(a)(7) integrates these

changes with the time to appeal.

The new all-purpose definition of the entry of judgment must be

applied with common sense to other questions that may turn on the

time when judgment is entered. If the 150-day provision in Rule

58(b)(2)(B) - designed to integrate the time for post-judgment

motions with appeal time - serves no purpose, or would defeat the

purpose of another rule, it should be disregarded. In theory, for

example, the separate document requirement continues to apply to an

interlocutory order that is appealable as a final decision under

collateral-order doctrine. Appealability under collateral-order

doctrine should not be complicated by failure to enter the order as

a judgment on a separate document - there is little reason to force

trial judges to speculate about the potential appealability of

every order, and there is no means to ensure that the trial judge

will always reach the same conclusion as the court of appeals.

Appeal time should start to run when the collateral order is

entered without regard to creation of a separate document and

without awaiting expiration of the 150 days provided by Rule

58(b)(2). Drastic surgery on Rules 54(a) and 58 would be required

to address this and related issues, however, and it is better to

leave this conundrum to the pragmatic disregard that seems its

present fate. The present amendments do not seem to make matters

worse, apart from one false appearance. If a pretrial order is set

forth on a separate document that meets the requirements of Rule

58(b), the time to move for reconsideration seems to begin to run,

perhaps years before final judgment. And even if there is no

separate document, the time to move for reconsideration seems to

begin 150 days after entry in the civil docket. This apparent

problem is resolved by Rule 54(b), which expressly permits revision

of all orders not made final under Rule 54(b) "at any time before

the entry of judgment adjudicating all the claims and the rights

and liabilities of all the parties."

New Rule 58(d) replaces the provision that attorneys shall not

submit forms of judgment except on direction of the court. This

provision was added to Rule 58 to avoid the delays that were

frequently encountered by the former practice of directing the

attorneys for the prevailing party to prepare a form of judgment,

and also to avoid the occasionally inept drafting that resulted

from attorney-prepared judgments. See 11 Wright, Miller & Kane,

Federal Practice & Procedure: Civil 2d, Sec. 2786. The express

direction in Rule 58(a)(2) for prompt action by the clerk, and by

the court if court action is required, addresses this concern. The

new provision allowing any party to move for entry of judgment on a

separate document will protect all needs for prompt commencement of

the periods for motions, appeals, and execution or other

enforcement.

Changes Made After Publication and Comments. Minor style changes

were made. The definition of the time of entering judgment in Rule

58(b) was extended to reach all Civil Rules, not only the Rules

described in the published version - Rules 50, 52, 54(d)(2)(B), 59,

60, and 62. And the time of entry was extended from 60 days to 150

days after entry in the civil docket without a required separate

document.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Appellate Procedure, referred to in subd.

(c)(2), are set out in this Appendix.

-End-

-CITE-

28 USC APPENDIX Rule 59 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VII. JUDGMENT

-HEAD-

Rule 59. New Trials; Amendment of Judgments

-STATUTE-

(a) Grounds. A new trial may be granted to all or any of the

parties and on all or part of the issues (1) in an action in which

there has been a trial by jury, for any of the reasons for which

new trials have heretofore been granted in actions at law in the

courts of the United States; and (2) in an action tried without a

jury, for any of the reasons for which rehearings have heretofore

been granted in suits in equity in the courts of the United States.

On a motion for a new trial in an action tried without a jury, the

court may open the judgment if one has been entered, take

additional testimony, amend findings of fact and conclusions of law

or make new findings and conclusions, and direct the entry of a new

judgment.

(b) Time for Motion. Any motion for a new trial shall be filed no

later than 10 days after entry of the judgment.

(c) Time for Serving Affidavits. When a motion for new trial is

based on affidavits, they shall be filed with the motion. The

opposing party has 10 days after service to file opposing

affidavits, but that period may be extended for up to 20 days,

either by the court for good cause or by the parties' written

stipulation. The court may permit reply affidavits.

(d) On Court's Initiative; Notice; Specifying Grounds. No later

than 10 days after entry of judgment the court, on its own, may

order a new trial for any reason that would justify granting one on

a party's motion. After giving the parties notice and an

opportunity to be heard, the court may grant a timely motion for a

new trial for a reason not stated in the motion. When granting a

new trial on its own initiative or for a reason not stated in a

motion, the court shall specify the grounds in its order.

(e) Motion to Alter or Amend Judgment. Any motion to alter or

amend a judgment shall be filed no later than 10 days after entry

of the judgment.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff.

July 1, 1966; Apr. 27, 1995, eff. Dec. 1, 1995.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

This rule represents an amalgamation of the petition for

rehearing of [former] Equity Rule 69 (Petition for Rehearing) and

the motion for new trial of U.S.C., Title 28, Sec. 391 [see 2111]

(New trials; harmless error), made in the light of the experience

and provision of the code States. Compare Calif.Code Civ.Proc.

(Deering, 1937) Secs. 656-663a, U.S.C., Title 28, Sec. 391 [see

2111] (New trials; harmless error) is thus substantially continued

in this rule. U.S.C., Title 28, [former] Sec. 840 (Executions; stay

on conditions) is modified insofar as it contains time provisions

inconsistent with Subdivision (b). For the effect of the motion for

new trial upon the time for taking an appeal see Morse v. United

States, 270 U.S. 151 (1926); Aspen Mining and Smelting Co. v.

Billings, 150 U.S. 31 (1893).

For partial new trials which are permissible under Subdivision

(a), see Gasoline Products Co., Inc., v. Champlin Refining Co., 283

U.S. 494 (1931); Schuerholz v. Roach, 58 F.(2d) 32 (C.C.A.4th,

1932); Simmons v. Fish, 210 Mass. 563, 97 N.E. 102, Ann.Cas.1912D,

588 (1912) (sustaining and recommending the practice and citing

Federal cases and cases in accord from about sixteen States and

contra from three States). The procedure in several States provides

specifically for partial new trials. Ariz.Rev.Code Ann.

(Struckmeyer, 1928) Sec. 3852; Calif.Code Civ.Proc. (Deering, 1937)

Secs. 657, 662; Ill.Rev.Stat. (1937) ch. 110, Sec. 216 (par. (f));

Md.Ann.Code (Bagby, 1924) Art. 5, Secs. 25, 26; Mich.Court Rules

Ann. (Searl, 1933) Rule 47, Sec. 2; Miss.Sup.Ct. Rule 12, 161 Miss.

903, 905 (1931); N.J.Sup.Ct. Rules 131, 132, 147, 2 N.J.Misc. 1197,

1246-1251, 1255 (1924); 2 N.D.Comp.Laws Ann. (1913), Sec. 7844, as

amended by N.D.Laws 1927, ch. 214.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Subdivision (b). With the time for appeal to a circuit court of

appeals reduced in general to 30 days by the proposed amendment of

Rule 73(a), the utility of the original "except" clause, which

permits a motion for a new trial on the ground of newly discovered

evidence to be made before the expiration of the time for appeal,

would have been seriously restricted. It was thought advisable,

therefore, to take care of this matter in another way. By amendment

of Rule 60(b), newly discovered evidence is made the basis for

relief from a judgment, and the maximum time limit has been

extended to one year. Accordingly the amendment of Rule 59(b)

eliminates the "except" clause and its specific treatment of newly

discovered evidence as a ground for a motion for new trial. This

ground remains, however, as a basis for a motion for new trial

served not later than 10 days after the entry of judgment. See also

Rule 60(b).

As to the effect of a motion under subdivision (b) upon the

running of appeal time, see amended Rule 73(a) and Note.

Subdivision (e). This subdivision has been added to care for a

situation such as that arising in Boaz v. Mutual Life Ins. Co. of

New York (C.C.A.8th, 1944) 146 F.(2d) 321, and makes clear that the

district court possesses the power asserted in that case to alter

or amend a judgment after its entry. The subdivision deals only

with alteration or amendment of the original judgment in a case and

does not relate to a judgment upon motion as provided in Rule

50(b). As to the effect of a motion under subdivision (e) upon the

running of appeal time, see amended Rule 73(a) and Note.

The title of Rule 59 has been expanded to indicate the inclusion

of this subdivision.

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

By narrow interpretation of Rule 59(b) and (d), it has been held

that the trial court is without power to grant a motion for a new

trial, timely served, by an order made more than 10 days after the

entry of judgment, based upon a ground not stated in the motion but

perceived and relied on by the trial court sua sponte. Freid v.

McGrath, 133 F.2d 350 (D.C.Cir. 1942); National Farmers Union Auto.

& Cas. Co. v. Wood, 207 F.2d 659 (10th Cir. 1953); Bailey v.

Slentz, 189 F.2d 406 (10th Cir. 1951); Marshall's U.S. Auto Supply,

Inc. v. Cashman, 111 F.2d 140 (10th Cir. 1940), cert. denied, 311

U.S. 667 (1940); but see Steinberg v. Indemnity Ins. Co., 36 F.R.D.

253 (E.D.La. 1964).

The result is undesirable. Just as the court has power under Rule

59(d) to grant a new trial of its own initiative within the 10

days, so it should have power, when an effective new trial motion

has been made and is pending, to decide it on grounds thought

meritorious by the court although not advanced in the motion. The

second sentence added by amendment to Rule 59(d) confirms the

court's power in the latter situation, with provision that the

parties be afforded a hearing before the power is exercised. See 6

Moore's Federal Practice, par. 59.09[2] (2d ed. 1953).

In considering whether a given ground has or has not been

advanced in the motion made by the party, it should be borne in

mind that the particularity called for in stating the grounds for a

new trial motion is the same as that required for all motions by

Rule 7(b)(1). The latter rule does not require ritualistic detail

but rather a fair indication to court and counsel of the substance

of the grounds relied on. See Lebeck v. William A. Jarvis Co., 250

F.2d 285 (3d Cir. 1957); Tsai v. Rosenthal, 297 F.2d 614 (8th Cir.

1961); General Motors Corp. v. Perry, 303 F.2d 544 (7th Cir. 1962);

cf. Grimm v. California Spray-Chemical Corp., 264 F.2d 145 (9th

Cir. 1959); Cooper v. Midwest Feed Products Co., 271 F.2d 177 (8th

Cir. 1959).

NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT

The only change, other than stylistic, intended by this revision

is to add explicit time limits for filing motions for a new trial,

motions to alter or amend a judgment, and affidavits opposing a new

trial motion. Previously, there was an inconsistency in the wording

of Rules 50, 52, and 59 with respect to whether certain

post-judgment motions had to be filed, or merely served, during the

prescribed period. This inconsistency caused special problems when

motions for a new trial were joined with other post-judgment

motions. These motions affect the finality of the judgment, a

matter often of importance to third persons as well as the parties

and the court. The Committee believes that each of these rules

should be revised to require filing before end of the 10-day

period. Filing is an event that can be determined with certainty

from court records. The phrase "no later than" is used - rather

than "within" - to include post-judgment motions that sometimes are

filed before actual entry of the judgment by the clerk. It should

be noted that under Rule 5 the motions when filed are to contain a

certificate of service on other parties. It also should be noted

that under Rule 6(a) Saturdays, Sundays, and legal holidays are

excluded in measuring the 10-day period, but that Bankruptcy Rule

9006(a) excludes intermediate Saturdays, Sundays, and legal

holidays only in computing periods less than 8 days.

-End-

-CITE-

28 USC APPENDIX Rule 60 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VII. JUDGMENT

-HEAD-

Rule 60. Relief From Judgment or Order

-STATUTE-

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or

other parts of the record and errors therein arising from oversight

or omission may be corrected by the court at any time of its own

initiative or on the motion of any party and after such notice, if

any, as the court orders. During the pendency of an appeal, such

mistakes may be so corrected before the appeal is docketed in the

appellate court, and thereafter while the appeal is pending may be

so corrected with leave of the appellate court.

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered

Evidence; Fraud, Etc. On motion and upon such terms as are just,

the court may relieve a party or a party's legal representative

from a final judgment, order, or proceeding for the following

reasons: (1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence could not have

been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether heretofore denominated intrinsic or extrinsic),

misrepresentation, or other misconduct of an adverse party; (4) the

judgment is void; (5) the judgment has been satisfied, released, or

discharged, or a prior judgment upon which it is based has been

reversed or otherwise vacated, or it is no longer equitable that

the judgment should have prospective application; or (6) any other

reason justifying relief from the operation of the judgment. The

motion shall be made within a reasonable time, and for reasons (1),

(2), and (3) not more than one year after the judgment, order, or

proceeding was entered or taken. A motion under this subdivision

(b) does not affect the finality of a judgment or suspend its

operation. This rule does not limit the power of a court to

entertain an independent action to relieve a party from a judgment,

order, or proceeding, or to grant relief to a defendant not

actually personally notified as provided in Title 28, U.S.C., Sec.

1655, or to set aside a judgment for fraud upon the court. Writs of

coram nobis, coram vobis, audita querela, and bills of review and

bills in the nature of a bill of review, are abolished, and the

procedure for obtaining any relief from a judgment shall be by

motion as prescribed in these rules or by an independent action.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.

Oct. 20, 1949; Mar. 2, 1987, eff. Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). See [former] Equity Rule 72 (Correction

of Clerical Mistakes in Orders and Decrees); Mich.Court Rules Ann.

(Searl, 1933) Rule 48, Sec. 3; 2 Wash.Rev.Stat.Ann. (Remington,

1932) Sec. 464(3); Wyo.Rev.Stat.Ann. (Courtright, 1931) Sec.

89-2301(3). For an example of a very liberal provision for the

correction of clerical errors and for amendment after judgment, see

Va.Code Ann. (Michie, 1936) Secs. 6329, 6333.

Note to Subdivision (b). Application to the court under this

subdivision does not extend the time for taking an appeal, as

distinguished from the motion for new trial. This section is based

upon Calif.Code Civ.Proc. (Deering, 1937) Sec. 473. See also

N.Y.C.P.A. (1937) Sec. 108; 2 Minn.Stat. (Mason, 1927) Sec. 9283.

For the independent action to relieve against mistake, etc., see

Dobie, Federal Procedure, pages 760-765, compare 639; and Simkins,

Federal Practice, ch. CXXI (pp. 820-830) and ch. CXXII (pp.

831-834), compare Sec. 214.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Subdivision (a). The amendment incorporates the view expressed in

Perlman v. 322 West Seventy-Second Street Co., Inc. (C.C.A.2d,

1942) 127 F.(2d) 716; 3 Moore's Federal Practice (1938) 3276, and

further permits correction after docketing, with leave of the

appellate court. Some courts have thought that upon the taking of

an appeal the district court lost its power to act. See Schram v.

Safety Investment Co. (E.D.Mich. 1942) 45 F.Supp. 636; also Miller

v. United States (C.C.A.7th, 1940) 114 F.(2d) 267.

Subdivision (b). When promulgated, the rules contained a number

of provisions, including those found in Rule 60(b), describing the

practice by a motion to obtain relief from judgments, and these

rules, coupled with the reservation in Rule 60(b) of the right to

entertain a new action to relieve a party from a judgment, were

generally supposed to cover the field. Since the rules have been in

force, decisions have been rendered that the use of bills of

review, coram nobis, or audita querela, to obtain relief from final

judgments is still proper, and that various remedies of this kind

still exist although they are not mentioned in the rules and the

practice is not prescribed in the rules. It is obvious that the

rules should be complete in this respect and define the practice

with respect to any existing rights or remedies to obtain relief

from final judgments. For extended discussion of the old common law

writs and equitable remedies, the interpretation of Rule 60, and

proposals for change, see Moore and Rogers, Federal Relief from

Civil Judgments (1946) 55 Yale L.J. 623. See also 3 Moore's Federal

Practice (1938) 3254 et seq.; Commentary, Effect of Rule 60b on

Other Methods of Relief From Judgment (1941) 4 Fed.Rules Serv. 942,

945; Wallace v. United States (C.C.A.2d, 1944) 142 F.(2d) 240,

cert. den. (1944) 323 U.S. 712.

The reconstruction of Rule 60(b) has for one of its purposes a

clarification of this situation. Two types of procedure to obtain

relief from judgments are specified in the rules as it is proposed

to amend them. One procedure is by motion in the court and in the

action in which the judgment was rendered. The other procedure is

by a new or independent action to obtain relief from a judgment,

which action may or may not be begun in the court which rendered

the judgment. Various rules, such as the one dealing with a motion

for new trial and for amendment of judgments, Rule 59, one for

amended findings, Rule 52, and one for judgment notwithstanding the

verdict, Rule 50(b), and including the provisions of Rule 60(b) as

amended, prescribe the various types of cases in which the practice

by motion is permitted. In each case there is a limit upon the time

within which resort to a motion is permitted, and this time limit

may not be enlarged under Rule 6(b). If the right to make a motion

is lost by the expiration of the time limits fixed in these rules,

the only other procedural remedy is by a new or independent action

to set aside a judgment upon those principles which have heretofore

been applied in such an action. Where the independent action is

resorted to, the limitations of time are those of laches or

statutes of limitations. The Committee has endeavored to ascertain

all the remedies and types of relief heretofore available by coram

nobis, coram vobis, audita querela, bill of review, or bill in the

nature of a bill of review. See Moore and Rogers, Federal Relief

from Civil Judgments (1946) 55 Yale L.J. 623, 659-682. It

endeavored then to amend the rules to permit, either by motion or

by independent action, the granting of various kinds of relief from

judgments which were permitted in the federal courts prior to the

adoption of these rules, and the amendment concludes with a

provision abolishing the use of bills of review and the other

common law writs referred to, and requiring the practice to be by

motion or by independent action.

To illustrate the operation of the amendment, it will be noted

that under Rule 59(b) as it now stands, without amendment, a motion

for new trial on the ground of newly discovered evidence is

permitted within ten days after the entry of the judgment, or after

that time upon leave of the court. It is proposed to amend Rule

59(b) by providing that under that rule a motion for new trial

shall be served not later than ten days after the entry of the

judgment, whatever the ground be for the motion, whether error by

the court or newly discovered evidence. On the other hand, one of

the purposes of the bill of review in equity was to afford relief

on the ground of newly discovered evidence long after the entry of

the judgment. Therefore, to permit relief by a motion similar to

that heretofore obtained on bill of review, Rule 60(b) as amended

permits an application for relief to be made by motion, on the

ground of newly discovered evidence, within one year after

judgment. Such a motion under Rule 60(b) does not affect the

finality of the judgment, but a motion under Rule 59, made within

10 days, does affect finality and the running of the time for

appeal.

If these various amendments, including principally those to Rule

60(b), accomplish the purpose for which they are intended, the

federal rules will deal with the practice in every sort of case in

which relief from final judgments is asked, and prescribe the

practice. With reference to the question whether, as the rules now

exist, relief by coram nobis, bills of review, and so forth, is

permissible, the generally accepted view is that the remedies are

still available, although the precise relief obtained in a

particular case by use of these ancillary remedies is shrouded in

ancient lore and mystery. See Wallace v. United States (C.C.A.2d,

1944) 142 F.(2d) 240, cert. den. (1944) 323 U.S. 712; Fraser v.

Doing (App.D.C. 1942) 130 F.(2d) 617; Jones v. Watts (C.C.A.5th,

1944) 142 F.(2d) 575; Preveden v. Hahn (S.D.N.Y. 1941) 36 F.Supp.

952; Cavallo v. Agwilines, Inc. (S.D.N.Y. 1942) 6 Fed.Rules Serv.

60b.31, Case 2, 2 F.R.D. 526; McGinn v. United States (D.Mass.

1942) 6 Fed.Rules Serv. 60b.51, Case 3, 2 F.R.D. 562; City of

Shattuck, Oklahoma ex rel. Versluis v. Oliver (W.D.Okla. 1945) 8

Fed.Rules Serv. 60b.31, Case 3; Moore and Rogers, Federal Relief

from Civil Judgments (1946) 55 Yale L.J. 623, 631-653; 3 Moore's

Federal Practice (1938) 3254 et seq.; Commentary, Effect of Rule

60b on Other Methods of Relief From Judgment, op. cit. supra. Cf.

Norris v. Camp (C.C.A.10th, 1944) 144 F.(2d) 1; Reed v. South

Atlantic Steamship Co. of Delaware (D.Del. 1942) 6 Fed.Rules Serv.

60b.31, Case 1; Laughlin v. Berens (D.D.C. 1945) 8 Fed.Rules Serv.

60b.51, Case 1, 73 W.L.R. 209.

The transposition of the words "the court" and the addition of

the word "and" at the beginning of the first sentence are merely

verbal changes. The addition of the qualifying word "final"

emphasizes the character of the judgments, orders or proceedings

from which Rule 60(b) affords relief; and hence interlocutory

judgments are not brought within the restrictions of the rule, but

rather they are left subject to the complete power of the court

rendering them to afford such relief from them as justice requires.

The qualifying pronoun "his" has been eliminated on the basis

that it is too restrictive, and that the subdivision should include

the mistake or neglect of others which may be just as material and

call just as much for supervisory jurisdiction as where the

judgment is taken against the party through his mistake,

inadvertence, etc.

Fraud, whether intrinsic or extrinsic, misrepresentation, or

other misconduct of an adverse party are express grounds for relief

by motion under amended subdivision (b). There is no sound reason

for their exclusion. The incorporation of fraud and the like within

the scope of the rule also removes confusion as to the proper

procedure. It has been held that relief from a judgment obtained by

extrinsic fraud could be secured by motion within a "reasonable

time," which might be after the time stated in the rule had run.

Fiske v. Buder (C.C.A.8th, 1942) 125 F.(2d) 841; see also

inferentially Bucy v. Nevada Construction Co. (C.C.A.9th, 1942) 125

F.(2d) 213. On the other hand, it has been suggested that in view

of the fact that fraud was omitted from original Rule 60(b) as a

ground for relief, an independent action was the only proper

remedy. Commentary, Effect of Rule 60b on Other Methods of Relief

From Judgment (1941) 4 Fed.Rules Serv. 942, 945. The amendment

settles this problem by making fraud an express ground for relief

by motion; and under the saving clause, fraud may be urged as a

basis for relief by independent action insofar as established

doctrine permits. See Moore and Rogers, Federal Relief from Civil

Judgments (1946) 55 Yale L.J. 623, 653-659; 3 Moore's Federal

Practice (1938) 3267 et seq. And the rule expressly does not limit

the power of the court, when fraud has been perpetrated upon it, to

give relief under the saving clause. As an illustration of this

situation, see Hazel-Atlas Glass Co. v. Hartford Empire Co. (1944)

322 U.S. 238.

The time limit for relief by motion in the court and in the

action in which the judgment was rendered has been enlarged from

six months to one year.

It should be noted that Rule 60(b) does not assume to define the

substantive law as to the grounds for vacating judgments, but

merely prescribes the practice in proceedings to obtain relief.

It should also be noted that under Sec. 200(4) of the Soldiers'

and Sailors' Civil Relief Act of 1940 (50 U.S.C. [App.] Sec. 501 et

seq. [Sec. 520(4)]), a judgment rendered in any action or

proceeding governed by the section may be vacated under certain

specified circumstances upon proper application to the court.

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 61 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VII. JUDGMENT

-HEAD-

Rule 61. Harmless Error

-STATUTE-

No error in either the admission or the exclusion of evidence and

no error or defect in any ruling or order or in anything done or

omitted by the court or by any of the parties is ground for

granting a new trial or for setting aside a verdict or for

vacating, modifying, or otherwise disturbing a judgment or order,

unless refusal to take such action appears to the court

inconsistent with substantial justice. The court at every stage of

the proceeding must disregard any error or defect in the proceeding

which does not affect the substantial rights of the parties.

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

A combination of U.S.C., Title 28, Secs. 391 [see 2111] (New

trials; harmless error) and [former] 777 (Defects of form;

amendments) with modifications. See McCandless v. United States,

298 U.S. 342 (1936). Compare [former] Equity Rule 72 (Correction of

Clerical Mistakes in Orders and Decrees); and last sentence of

[former] Equity Rule 46 (Trial - Testimony Usually Taken in Open

Court - Rulings on Objections to Evidence). For the last sentence

see the last sentence of [former] Equity Rule 19 (Amendments

Generally).

-End-

-CITE-

28 USC APPENDIX Rule 62 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VII. JUDGMENT

-HEAD-

Rule 62. Stay of Proceedings To Enforce a Judgment

-STATUTE-

(a) Automatic Stay; Exceptions - Injunctions, Receiverships, and

Patent Accountings. Except as stated herein, no execution shall

issue upon a judgment nor shall proceedings be taken for its

enforcement until the expiration of 10 days after its entry. Unless

otherwise ordered by the court, an interlocutory or final judgment

in an action for an injunction or in a receivership action, or a

judgment or order directing an accounting in an action for

infringement of letters patent, shall not be stayed during the

period after its entry and until an appeal is taken or during the

pendency of an appeal. The provisions of subdivision (c) of this

rule govern the suspending, modifying, restoring, or granting of an

injunction during the pendency of an appeal.

(b) Stay on Motion for New Trial or for Judgment. In its

discretion and on such conditions for the security of the adverse

party as are proper, the court may stay the execution of or any

proceedings to enforce a judgment pending the disposition of a

motion for a new trial or to alter or amend a judgment made

pursuant to Rule 59, or of a motion for relief from a judgment or

order made pursuant to Rule 60, or of a motion for judgment in

accordance with a motion for a directed verdict made pursuant to

Rule 50, or of a motion for amendment to the findings or for

additional findings made pursuant to Rule 52(b).

(c) Injunction Pending Appeal. When an appeal is taken from an

interlocutory or final judgment granting, dissolving, or denying an

injunction, the court in its discretion may suspend, modify,

restore, or grant an injunction during the pendency of the appeal

upon such terms as to bond or otherwise as it considers proper for

the security of the rights of the adverse party. If the judgment

appealed from is rendered by a district court of three judges

specially constituted pursuant to a statute of the United States,

no such order shall be made except (1) by such court sitting in

open court or (2) by the assent of all the judges of such court

evidenced by their signatures to the order.

(d) Stay Upon Appeal. When an appeal is taken the appellant by

giving a supersedeas bond may obtain a stay subject to the

exceptions contained in subdivision (a) of this rule. The bond may

be given at or after the time of filing the notice of appeal or of

procuring the order allowing the appeal, as the case may be. The

stay is effective when the supersedeas bond is approved by the

court.

(e) Stay in Favor of the United States or Agency Thereof. When an

appeal is taken by the United States or an officer or agency

thereof or by direction of any department of the Government of the

United States and the operation or enforcement of the judgment is

stayed, no bond, obligation, or other security shall be required

from the appellant.

(f) Stay According to State Law. In any state in which a judgment

is a lien upon the property of the judgment debtor and in which the

judgment debtor is entitled to a stay of execution, a judgment

debtor is entitled, in the district court held therein, to such

stay as would be accorded the judgment debtor had the action been

maintained in the courts of that state.

(g) Power of Appellate Court Not Limited. The provisions in this

rule do not limit any power of an appellate court or of a judge or

justice thereof to stay proceedings during the pendency of an

appeal or to suspend, modify, restore, or grant an injunction

during the pendency of an appeal or to make any order appropriate

to preserve the status quo or the effectiveness of the judgment

subsequently to be entered.

(h) Stay of Judgment as to Multiple Claims or Multiple Parties.

When a court has ordered a final judgment under the conditions

stated in Rule 54(b), the court may stay enforcement of that

judgment until the entering of a subsequent judgment or judgments

and may prescribe such conditions as are necessary to secure the

benefit thereof to the party in whose favor the judgment is

entered.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.

Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961; Mar. 2, 1987,

eff. Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). The first sentence states the substance

of the last sentence of U.S.C., Title 28, [former] Sec. 874

(Supersedeas). The remainder of the subdivision states the

substance of the last clause of U.S.C., Title 28, [former] Sec. 227

(Appeals in proceedings for injunctions; receivers; and admiralty),

and of [former] Sec. 227a (Appeals in suits in equity for

infringement of letters patent for inventions; stay of proceedings

for accounting), but extended to include final as well as

interlocutory judgments.

Note to Subdivision (b). This modifies U.S.C., Title 28, [former]

Sec. 840 (Executions; stay on conditions).

Note to Subdivision (c). Compare [former] Equity Rule 74

(Injunction Pending Appeal); and Cumberland Telephone and Telegraph

Co. v. Louisiana Public Service Commission, 260 U.S. 212 (1922).

See Simkins, Federal Practice (1934) Sec. 916 in regard to the

effect of appeal on injunctions and the giving of bonds. See

U.S.C., [former] Title 6 (Official and Penal Bonds) for bonds by

surety companies. For statutes providing for a specially

constituted district court of three judges, see:

U.S.C., Title 7:

Sec. 217 (Proceedings for suspension of orders of Secretary of

Agriculture under Stockyards Act) - by reference.

Sec. 499k (Injunctions; application of injunction laws governing

orders of Interstate Commerce Commission to orders of

Secretary of Agriculture under Perishable Commodities Act) -

by reference.

U.S.C., Title 15:

Sec. 28 (Antitrust laws; suits against monopolies expedited)

U.S.C., Title 28:

Sec. 47 [now 2325] (Injunctions as to orders of Interstate

Commerce Commission, etc.)

Sec. 380 [now 2284] (Injunctions; alleged unconstitutionality of

State statutes.)

Sec. 380a [now 2284] (Same; constitutionality of federal statute)

U.S.C., Title 49:

Sec. 44 [former] (Suits in equity under interstate commerce laws;

expedition of suits)

Note to Subdivision (d). This modifies U.S.C., Title 28, [former]

Sec. 874 (Supersedeas). See Rule 36(2), Rules of the Supreme Court

of the United States, which governs supersedeas bonds on direct

appeals to the Supreme Court, and Rule 73(d), of these rules, which

governs supersedeas bonds on appeals to a circuit court of appeals.

The provisions governing supersedeas bonds in both kinds of appeals

are substantially the same.

Note to Subdivision (e). This states the substance of U.S.C.,

Title 28, Sec. 870 [now 2408] (Bond; not required of the United

States).

Note to Subdivision (f). This states the substance of U.S.C.,

Title 28, [former] Sec. 841 (Executions; stay of one term) with

appropriate modification to conform to the provisions of Rule 6(c)

as to terms of court.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Subdivision (a). [This subdivision not amended]. Sections 203 and

204 of the Soldiers' and Sailors' Civil Relief Act of 1940 (50

U.S.C. [App.] Sec. 501 et seq. [Secs. 523, 524]) provide under

certain circumstances for the issuance and continuance of a stay of

execution of any judgment or order entered against a person in

military service. See Bowsman v. Peterson (D.Neb. 1942) 45 F.Supp.

741. Section 201 of the Act [50 U.S.C. App. Sec. 521] permits under

certain circumstances the issuance of a stay of any action or

proceeding at any stage thereof, where either the plaintiff or

defendant is a person in military service. See also Note to Rule 64

herein.

Subdivision (b). This change was necessary because of the

proposed addition to Rule 59 of subdivision (e).

Subdivision (h). In proposing to revise Rule 54(b), the Committee

thought it advisable to include a separate provision in Rule 62 for

stay of enforcement of a final judgment in cases involving multiple

claims.

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

Section 210 of the Judicial Code, as amended, U.S.C., Title 28,

Sec. 47a, is repealed by revised Title 28 and its provisions that

stays pending appeals to the Supreme Court in Interstate Commerce

Commission cases may be granted only by that court or a justice

thereof are not included in revised Title 28. Prior to this repeal

the additional general reference in subdivision (g) to "other

statutes of the United States", was needed as a safety residual

provision due to the specific reference to Section 210 of the

Judicial Code. With the repeal of this latter section there is no

need for the residual provision, which has no present

applicability; and to the extent that any statute is enacted

providing "that stays pending appeals to the Supreme Court may be

granted only by that court or a justice thereof" it will govern and

will not be inconsistent or repugnant to subdivision (g) as

amended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1961 AMENDMENT

These changes conform to the amendment of Rule 54(b).

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 63 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VII. JUDGMENT

-HEAD-

Rule 63. Inability of a Judge to Proceed

-STATUTE-

If a trial or hearing has been commenced and the judge is unable

to proceed, any other judge may proceed with it upon certifying

familiarity with the record and determining that the proceedings in

the case may be completed without prejudice to the parties. In a

hearing or trial without a jury, the successor judge shall at the

request of a party recall any witness whose testimony is material

and disputed and who is available to testify again without undue

burden. The successor judge may also recall any other witness.

-SOURCE-

(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff.

Dec. 1, 1991.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

This rule adapts and extends the provisions of U.S.C., Title 28,

[former] Sec. 776 (Bill of exceptions; authentication; signing of

by judge) to include all duties to be performed by the judge after

verdict or judgment. The statute is therefore superseded.

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 revision substantially displaces the former rule. The former

rule was limited to the disability of the judge, and made no

provision for disqualification or possible other reasons for the

withdrawal of the judge during proceedings. In making provision for

other circumstances, the revision is not intended to encourage

judges to discontinue participation in a trial for any but

compelling reasons. Cf. United States v. Lane, 708 F.2d 1394,

1395-1397 (9th cir. 1983). Manifestly, a substitution should not be

made for the personal convenience of the court, and the reasons for

a substitution should be stated on the record.

The former rule made no provision for the withdrawal of the judge

during the trial, but was limited to disqualification after trial.

Several courts concluded that the text of the former rule

prohibited substitution of a new judge prior to the points

described in the rule, thus requiring a new trial, whether or not a

fair disposition was within reach of a substitute judge. E.g.,

Whalen v. Ford Motor Credit Co., 684 F.2d 272 (4th Cir. 1982, en

banc) cert. denied, 459 U.S. 910 (1982) (jury trial); Arrow-Hart,

Inc. v. Philip Carey Co., 552 F.2d 711 (6th Cir. 1977) (non-jury

trial). See generally Comment, The Case of the Dead Judge:

Fed.R.Civ.P. 63: Whalen v. Ford Motor Credit Co., 67 MINN. L. REV.

827 (1983).

The increasing length of federal trials has made it likely that

the number of trials interrupted by the disability of the judge

will increase. An efficient mechanism for completing these cases

without unfairness is needed to prevent unnecessary expense and

delay. To avoid the injustice that may result if the substitute

judge proceeds despite unfamiliarity with the action, the new Rule

provides, in language similar to Federal Rule of Criminal Procedure

25(a), that the successor judge must certify familiarity with the

record and determine that the case may be completed before that

judge without prejudice to the parties. This will necessarily

require that there be available a transcript or a videotape of the

proceedings prior to substitution. If there has been a long but

incomplete jury trial, the prompt availability of the transcript or

videotape is crucial to the effective use of this rule, for the

jury cannot long be held while an extensive transcript is prepared

without prejudice to one or all parties.

The revised text authorizes the substitute judge to make a

finding of fact at a bench trial based on evidence heard by a

different judge. This may be appropriate in limited circumstances.

First, if a witness has become unavailable, the testimony recorded

at trial can be considered by the successor judge pursuant to

F.R.Ev. 804, being equivalent to a recorded deposition available

for use at trial pursuant to Rule 32. For this purpose, a witness

who is no longer subject to a subpoena to compel testimony at trial

is unavailable. Secondly, the successor judge may determine that

particular testimony is not material or is not disputed, and so

need not be reheard. The propriety of proceeding in this manner may

be marginally affected by the availability of a videotape record; a

judge who has reviewed a trial on videotape may be entitled to

greater confidence in his or her ability to proceed.

The court would, however, risk error to determine the credibility

of a witness not seen or heard who is available to be recalled. Cf.

Anderson v. City of Bessemer City NC, 470 U.S. 564, 575 (1985);

Marshall v. Jerrico Inc, 446 U.S. 238, 242 (1980). See also United

States v. Radatz, 447 U.S. 667 (1980).

-End-

-CITE-

28 USC APPENDIX VIII. PROVISIONAL AND FINAL

REMEDIES 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

VIII. PROVISIONAL AND FINAL REMEDIES

-End-

-CITE-

28 USC APPENDIX Rule 64 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 64. Seizure of Person or Property

-STATUTE-

At the commencement of and during the course of an action, all

remedies providing for seizure of person or property for the

purpose of securing satisfaction of the judgment ultimately to be

entered in the action are available under the circumstances and in

the manner provided by the law of the state in which the district

court is held, existing at the time the remedy is sought, subject

to the following qualifications: (1) any existing statute of the

United States governs to the extent to which it is applicable; (2)

the action in which any of the foregoing remedies is used shall be

commenced and prosecuted or, if removed from a state court, shall

be prosecuted after removal, pursuant to these rules. The remedies

thus available include arrest, attachment, garnishment, replevin,

sequestration, and other corresponding or equivalent remedies,

however designated and regardless of whether by state procedure the

remedy is ancillary to an action or must be obtained by an

independent action.

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

This rule adopts the existing Federal law, except that it

specifies the applicable State law to be that of the time when the

remedy is sought. Under U.S.C., Title 28, [former] Sec. 726

(Attachments as provided by State laws) the plaintiff was entitled

to remedies by attachment or other process which were on June 1,

1872, provided by the applicable State law, and the district courts

might, from time to time, by general rules, adopt such State laws

as might be in force. This statute is superseded as are district

court rules which are rendered unnecessary by the rule.

Lis pendens. No rule concerning lis pendens is stated, for this

would appear to be a matter of substantive law affecting State laws

of property. It has been held that in the absence of a State

statute expressly providing for the recordation of notice of the

pendency of Federal actions, the commencement of a Federal action

is notice to all persons affected. King v. Davis, 137 Fed. 198

(W.D.Va., 1903). It has been held, however, that when a State

statute does so provide expressly, its provisions are binding.

United States v. Calcasieu Timber Co., 236 Fed. 196 (C.C.A.5th,

1916).

For statutes of the United States on attachment, see e.g.:

U.S.C., Title 28:

Sec. 737 [now 2710] (Attachment in postal suits)

Sec. 738 [now 2711] (Attachment; application for warrant)

Sec. 739 [now 2712] (Attachment; issue of warrant)

Sec. 740 [now 2713] (Attachment; trial of ownership of property)

Sec. 741 [now 2714] (Attachment; investment of proceeds of

attached property)

Sec. 742 [now 2715] (Attachment; publication of attachment)

Sec. 743 [now 2716] (Attachment; personal notice of attachment)

Sec. 744 [now 2717] (Attachment; discharge; bond)

Sec. 745 [former] (Attachment; accrued rights not affected)

Sec. 746 (Attachments dissolved in conformity with State laws)

For statutes of the United States on garnishment, see e.g.:

U.S.C., Title 28:

Sec. 748 [now 2405] (Garnishees in suits by United States against

a corporation)

Sec. 749 [now 2405] (Same; issue tendered on denial of

indebtedness)

Sec. 750 [now 2405] (Same; garnishee failing to appear)

For statutes of the United States on arrest, see e.g.:

U.S.C., Title 28:

Sec. 376 [now 1651] (Writs of ne exeat)

Sec. 755 [former] (Special bail in suits for duties and penalties)

Sec. 756 [former] (Defendant giving bail in one district and

committed in another)

Sec. 757 [former] (Defendant giving bail in one district and

committed in another; defendant held until judgment in first

suit)

Sec. 758 [former] (Bail and affidavits; taking by commissioners)

Sec. 759 [former] (Calling of bail in Kentucky)

Sec. 760 [former] (Clerks may take bail de bene esse)

Sec. 843 [now 2007] (Imprisonment for debt)

Sec. 844 [now 2007] (Imprisonment for debt; discharge according to

State laws)

Sec. 845 [now 2007] (Imprisonment for debt; jail limits)

For statutes of the United States on replevin, see, e.g.:

U.S.C., Title 28:

Sec. 747 [now 2463] (Replevy of property taken under revenue laws)

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 SUPPLEMENTARY NOTE

Sections 203 and 204 of the Soldiers' and Sailors' Civil Relief

Act of 1940 (50 U.S.C. [App.] Sec. 501 et seq. [Secs. 523, 524])

provide under certain circumstances for the issuance and

continuance of a stay of the execution of any judgment entered

against a person in military service, or the vacation or stay of

any attachment or garnishment directed against such person's

property, money, or debts in the hands of another. See also Note to

Rule 62 herein.

-End-

-CITE-

28 USC APPENDIX Rule 65 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 65. Injunctions

-STATUTE-

(a) Preliminary Injunction.

(1) Notice. No preliminary injunction shall be issued without

notice to the adverse party.

(2) Consolidation of Hearing With Trial on Merits. Before or

after the commencement of the hearing of an application for a

preliminary injunction, the court may order the trial of the

action on the merits to be advanced and consolidated with the

hearing of the application. Even when this consolidation is not

ordered, any evidence received upon an application for a

preliminary injunction which would be admissible upon the trial

on the merits becomes part of the record on the trial and need

not be repeated upon the trial. This subdivision (a)(2) shall be

so construed and applied as to save to the parties any rights

they may have to trial by jury.

(b) Temporary Restraining Order; Notice; Hearing; Duration. A

temporary restraining order may be granted without written or oral

notice to the adverse party or that party's attorney only if (1) it

clearly appears from specific facts shown by affidavit or by the

verified complaint that immediate and irreparable injury, loss, or

damage will result to the applicant before the adverse party or

that party's attorney can be heard in opposition, and (2) the

applicant's attorney certifies to the court in writing the efforts,

if any, which have been made to give the notice and the reasons

supporting the claim that notice should not be required. Every

temporary restraining order granted without notice shall be

indorsed with the date and hour of issuance; shall be filed

forthwith in the clerk's office and entered of record; shall define

the injury and state why it is irreparable and why the order was

granted without notice; and shall expire by its terms within such

time after entry, not to exceed 10 days, as the court fixes, unless

within the time so fixed the order, for good cause shown, is

extended for a like period or unless the party against whom the

order is directed consents that it may be extended for a longer

period. The reasons for the extension shall be entered of record.

In case a temporary restraining order is granted without notice,

the motion for a preliminary injunction shall be set down for

hearing at the earliest possible time and takes precedence of all

matters except older matters of the same character; and when the

motion comes on for hearing the party who obtained the temporary

restraining order shall proceed with the application for a

preliminary injunction and, if the party does not do so, the court

shall dissolve the temporary restraining order. On 2 days' notice

to the party who obtained the temporary restraining order without

notice or on such shorter notice to that party as the court may

prescribe, the adverse party may appear and move its dissolution or

modification and in that event the court shall proceed to hear and

determine such motion as expeditiously as the ends of justice

require.

(c) Security. No restraining order or preliminary injunction

shall issue except upon the giving of security by the applicant, in

such sum as the court deems proper, for the payment of such costs

and damages as may be incurred or suffered by any party who is

found to have been wrongfully enjoined or restrained. No such

security shall be required of the United States or of an officer or

agency thereof.

The provisions of Rule 65.1 apply to a surety upon a bond or

undertaking under this rule.

(d) Form and Scope of Injunction or Restraining Order. Every

order granting an injunction and every restraining order shall set

forth the reasons for its issuance; shall be specific in terms;

shall describe in reasonable detail, and not by reference to the

complaint or other document, the act or acts sought to be

restrained; and is binding only upon the parties to the action,

their officers, agents, servants, employees, and attorneys, and

upon those persons in active concert or participation with them who

receive actual notice of the order by personal service or

otherwise.

(e) Employer and Employee; Interpleader; Constitutional Cases.

These rules do not modify any statute of the United States relating

to temporary restraining orders and preliminary injunctions in

actions affecting employer and employee; or the provisions of Title

28, U.S.C., Sec. 2361, relating to preliminary injunctions in

actions of interpleader or in the nature of interpleader; or Title

28, U.S.C., Sec. 2284, relating to actions required by Act of

Congress to be heard and determined by a district court of three

judges.

(f) Copyright Impoundment. This rule applies to copyright

impoundment proceedings.

-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. 23, 2001, eff. Dec. 1, 2001.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivisions (a) and (b). These are taken from U.S.C.,

Title 28, [former] Sec. 381 (Injunctions; preliminary injunctions

and temporary restraining orders).

Note to Subdivision (c). Except for the last sentence, this is

substantially U.S.C., Title 28, [former] Sec. 382 (Injunctions;

security on issuance of). The last sentence continues the following

and similar statutes which expressly except the United States or an

officer or agency thereof from such security requirements:

U.S.C., Title 15, Secs. 77t(b), 78u(e), and 79r(f) (Securities and

Exchange Commission).

It also excepts the United States or an officer or agency thereof

from such security requirements in any action in which a

restraining order or interlocutory judgment of injunction issues in

its favor whether there is an express statutory exception from such

security requirements or not.

See U.S.C., [former] Title 6 (Official and Penal Bonds) for bonds

by surety companies.

Note to Subdivision (d). This is substantially U.S.C., Title 28,

[former] Sec. 383 (Injunctions; requisites of order; binding

effect).

Note to Subdivision (e). The words "relating to temporary

restraining orders and preliminary injunctions in actions affecting

employer and employee" are words of description and not of

limitation.

Compare [former] Equity Rule 73 (Preliminary Injunctions and

Temporary Restraining Orders) which is substantially equivalent to

the statutes.

For other statutes dealing with injunctions which are continued,

see e.g.:

U.S.C., Title 28:

Sec. 46 [now 2324] (Suits to enjoin orders of Interstate Commerce

Commission to be against United States)

Sec. 47 [now 2325] (Injunctions as to orders of Interstate

Commerce Commission; appeal to Supreme Court; time for

taking)

Sec. 378 [former] (Injunctions; when granted)

Sec. 379 [now 2283] (Injunctions; stay in State courts)

Sec. 380 [now 1253, 2101, 2281, 2284] (Injunctions; alleged

unconstitutionality of State statutes; appeal to Supreme

Court)

Sec. 380a [now 1253, 2101, 2281, 2284] (Injunctions;

constitutionality of Federal statute; application for

hearing; appeal to Supreme Court)

U.S.C., Title 7:

Sec. 216 (Court proceedings to enforce orders; injunction)

Sec. 217 (Proceedings for suspension of orders)

U.S.C., Title 15:

Sec. 4 (Jurisdiction of courts; duty of district attorney;

procedure)

Sec. 25 (Restraining violations; procedure)

Sec. 26 (Injunctive relief for private parties; exceptions)

Sec. 77t(b) (Injunctions and prosecution of offenses)

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

It has been held that in actions on preliminary injunction bonds

the district court has discretion to grant relief in the same

proceeding or to require the institution of a new action on the

bond. Russell v. Farley (1881) 105 U.S. 433, 466. It is believed,

however, that in all cases the litigant should have a right to

proceed on the bond in the same proceeding, in the manner provided

in Rule 73(f) for a similar situation. The paragraph added to Rule

65(c) insures this result and is in the interest of efficiency.

There is no reason why Rules 65(c) and 73(f) should operate

differently. Compare Sec. 50(n) of the Bankruptcy Act, 11 U.S.C.

Sec. 78(n), under which actions on all bonds furnished pursuant to

the Act may be proceeded upon summarily in the bankruptcy court.

See 2 Collier on Bankruptcy (14th ed. by Moore and Oglebay)

1853-1854.

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

Specific enumeration of statutes dealing with labor injunctions

is undesirable due to the enactment of amendatory or new

legislation from time to time. The more general and inclusive

reference, "any statute of the United States", does not change the

intent of subdivision (e) of Rule 65, and the subdivision will have

continuing applicability without the need of subsequent

readjustment to labor legislation.

The amendment relative to actions of interpleader or in the

nature of interpleader substitutes the present statutory reference

and will embrace any future amendment to statutory interpleader

provided for in Title 28, U.S.C., Sec. 2361.

The Act of August 24, 1937, provided for a district court of

three judges to hear and determine an action to enjoin the

enforcement of any Act of Congress for repugnance to the

Constitution of the United States. The provisions of that Act

dealing with the procedure for the issuance of temporary

restraining orders and interlocutory and final injunctions have

been included in revised Title 28, U.S.C., Sec. 2284, which,

however, has been broadened to apply to all actions required to be

heard and determined by a district court of three judges. The

amendatory saving clause of subdivision (e) of Rule 65 has been

broadened accordingly.

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

Subdivision (a)(2). This new subdivision provides express

authority for consolidating the hearing of an application for a

preliminary injunction with the trial on the merits. The authority

can be exercised with particular profit when it appears that a

substantial part of evidence offered on the application will be

relevant to the merits and will be presented in such form as to

qualify for admission on the trial proper. Repetition of evidence

is thereby avoided. The fact that the proceedings have been

consolidated should cause no delay in the disposition of the

application for the preliminary injunction, for the evidence will

be directed in the first instance to that relief, and the

preliminary injunction, if justified by the proof, may be issued in

the course of the consolidated proceedings. Furthermore, to

consolidate the proceedings will tend to expedite the final

disposition of the action. It is believed that consolidation can be

usefully availed of in many cases.

The subdivision further provides that even when consolidation is

not ordered, evidence received in connection with an application

for a preliminary injunction for a preliminary injunction which

would be admissible on the trial on the merits forms part of the

trial record. This evidence need not be repeated on the trial. On

the the other hand, repetition is not altogether prohibited. That

would be impractical and unwise. For example, a witness testifying

comprehensively on the trial who has previously testified upon the

application for a preliminary injunction might sometimes be

hamstrung in telling his story if he could not go over some part of

his prior testimony to connect it with his present testimony. So

also, some repetition of testimony may be called for where the

trial is conducted by a judge who did not hear the application for

the preliminary injunction. In general, however, repetition can be

avoided with an increase of efficiency in the conduct of the case

and without any distortion of the presentation of evidence by the

parties.

Since an application for a preliminary injunction may be made in

an action in which, with respect to all or part of the merits,

there is a right to trial by jury, it is appropriate to add the

caution appearing in the last sentence of the subdivision. In such

a case the jury will have to hear all the evidence bearing on its

verdict, even if some part of the evidence has already been heard

by the judge alone on the application for the preliminary

injunction.

The subdivision is believed to reflect the substance of the best

current practice and introduces no novel conception.

Subdivision (b). In view of the possibly drastic consequence of a

temporary restraining order, the opposition should be heard, if

feasible, before the order is granted. Many judges have properly

insisted that, when time does not permit of formal notice of the

application to the adverse party, some expedient, such as

telephonic notice to the attorney for the adverse party, be

resorted to if this can reasonably be done. On occasion, however,

temporary restraining orders have been issued without any notice

when it was feasible for some fair, although informal, notice to be

given. See the emphatic criticisms in Pennsylvania Rd. Co. v.

Transport Workers Union, 278 F.2d 693, 694 (3d Cir. 1960); Arvida

Corp. v. Sugarman, 259 F.2d 428, 429 (2d Cir. 1958); Lummus Co. v.

Commonwealth Oil Ref. Co., Inc., 297 F.2d 80, 83 (2d Cir. 1961),

cert. denied, 368 U.S. 986 (1962).

Heretofore the first sentence of subdivision (b), in referring to

a notice "served" on the "adverse party" on which a "hearing" could

be held, perhaps invited the interpretation that the order might be

granted without notice if the circumstances did not permit of a

formal hearing on the basis of a formal notice. The subdivision is

amended to make it plain that informal notice, which may be

communicated to the attorney rather than the adverse party, is to

be preferred to no notice at all.

Before notice can be dispensed with, the applicant's counsel must

give his certificate as to any efforts made to give notice and the

reasons why notice should not be required. This certificate is in

addition to the requirement of an affidavit or verified complaint

setting forth the facts as to the irreparable injury which would

result before the opposition could be heard.

The amended subdivision continues to recognize that a temporary

restraining order may be issued without any notice when the

circumstances warrant.

Subdivision (c). Original Rules 65 and 73 contained substantially

identical provisions for summary proceedings against sureties on

bonds required or permitted by the rules. There was fragmentary

coverage of the same subject in the Admiralty Rules. Clearly, a

single comprehensive rule is required, and is incorporated as Rule

65.1.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

COMMITTEE NOTES ON RULES - 2001 AMENDMENT

New subdivision (f) is added in conjunction with abrogation of

the antiquated Copyright Rules of Practice adopted for proceedings

under the 1909 Copyright Act. Courts have naturally turned to Rule

65 in response to the apparent inconsistency of the former

Copyright Rules with the discretionary impoundment procedure

adopted in 1976, 17 U.S.C. Sec. 503(a). Rule 65 procedures also

have assuaged well-founded doubts whether the Copyright Rules

satisfy more contemporary requirements of due process. See, e.g.,

Religious Technology Center v. Netcom On-Line Communications

Servs., Inc., 923 F.Supp. 1231, 1260-1265 (N.D.Cal.1995); Paramount

Pictures Corp. v. Doe, 821 F.Supp. 82 (E.D.N.Y.1993); WPOW, Inc. v.

MRLJ Enterprises, 584 F.Supp. 132 (D.D.C.1984).

A common question has arisen from the experience that notice of a

proposed impoundment may enable an infringer to defeat the court's

capacity to grant effective relief. Impoundment may be ordered on

an ex parte basis under subdivision (b) if the applicant makes a

strong showing of the reasons why notice is likely to defeat

effective relief. Such no-notice procedures are authorized in

trademark infringement proceedings, see 15 U.S.C. Sec. 1116(d), and

courts have provided clear illustrations of the kinds of showings

that support ex parte relief. See Matter of Vuitton et Fils S.A.,

606 F.2d 1 (2d Cir.1979); Vuitton v. White, 945 F.2d 569 (3d

Cir.1991). In applying the tests for no-notice relief, the court

should ask whether impoundment is necessary, or whether adequate

protection can be had by a less intrusive form of no-notice relief

shaped as a temporary restraining order.

This new subdivision (f) does not limit use of trademark

procedures in cases that combine trademark and copyright claims.

Some observers believe that trademark procedures should be adopted

for all copyright cases, a proposal better considered by

Congressional processes than by rulemaking processes.

Changes Made After Publication and Comments No change has been

made.

-End-

-CITE-

28 USC APPENDIX Rule 65.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 65.1. Security: Proceedings Against Sureties

-STATUTE-

Whenever these rules, including the Supplemental Rules for

Certain Admiralty and Maritime Claims, require or permit the giving

of security by a party, and security is given in the form of a bond

or stipulation or other undertaking with one or more sureties, each

surety submits to the jurisdiction of the court and irrevocably

appoints the clerk of the court as the surety's agent upon whom any

papers affecting the surety's liability on the bond or undertaking

may be served. The surety's liability may be enforced on motion

without the necessity of an independent action. The motion and such

notice of the motion as the court prescribes may be served on the

clerk of the court, who shall forthwith mail copies to the sureties

if their addresses are known.

-SOURCE-

(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987,

eff. Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1966

See Note to Rule 65.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 66 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 66. Receivers Appointed by Federal Courts

-STATUTE-

An action wherein a receiver has been appointed shall not be

dismissed except by order of the court. The practice in the

administration of estates by receivers or by other similar officers

appointed by the court shall be in accordance with the practice

heretofore followed in the courts of the United States or as

provided in rules promulgated by the district courts. In all other

respects the action in which the appointment of a receiver is

sought or which is brought by or against a receiver is governed by

these rules.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.

Oct. 20, 1949.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

The title of Rule 66 has been expanded to make clear the subject

of the rule, i.e., federal equity receivers.

The first sentence added to Rule 66 prevents a dismissal by any

party, after a federal equity receiver has been appointed, except

upon leave of court. A party should not be permitted to oust the

court and its officer without the consent of that court. See Civil

Rule 31(e), Eastern District of Washington.

The second sentence added at the beginning of the rule deals with

suits by or against a federal equity receiver. The first clause

thereof eliminates the formal ceremony of an ancillary appointment

before suit can be brought by a receiver, and is in accord with the

more modern state practice, and with more expeditious and less

expensive judicial administration. 2 Moore's Federal Practice

(1938) 2088-2091. For the rule necessitating ancillary appointment,

see Sterrett v. Second Nat. Bank (1918) 248 U.S. 73; Kelley v.

Queeney (W.D.N.Y. 1941) 41 F.Supp. 1015; see also McCandless v.

Furlaud (1934) 293 U.S. 67. This rule has been extensively

criticized. First, Extraterritorial Powers of Receivers (1932) 27

Ill.L.Rev. 271; Rose, Extraterritorial Actions by Receivers (1933)

17 Minn.L.Rev. 704; Laughlin, The Extraterritorial Powers of

Receivers (1932) 45 Harv.L.Rev. 429; Clark and Moore, A New Federal

Civil Procedure - II, Pleadings and Parties (1935) 44 Yale L.J.

1291, 1312-1315; Note (1932) 30 Mich.L.Rev. 1322. See also comment

in Bicknell v. Lloyd-Smith (C.C.A.2d, 1940) 109 F.(2d) 527, cert.

den. (1940) 311 U.S. 650. The second clause of the sentence merely

incorporates the well-known and general rule that, absent statutory

authorization, a federal receiver cannot be sued without leave of

the court which appointed him, applied in the federal courts since

Barton v. Barbour (1881) 104 U.S. 126. See also 1 Clark on

Receivers (2d ed.) Sec. 549. Under 28 U.S.C. Sec. 125, leave of

court is unnecessary when a receiver is sued "in respect of any act

or transaction of his in carrying on the business" connected with

the receivership property, but such suit is subject to the general

equity jurisdiction of the court in which the receiver was

appointed, so far as justice necessitates.

Capacity of a state court receiver to sue or be sued in federal

court is governed by Rule 17(b).

The last sentence added to Rule 66 assures the application of the

rules in all matters except actual administration of the

receivership estate itself. Since this implicitly carries with it

the applicability of those rules relating to appellate procedure,

the express reference thereto contained in Rule 66 has been

stricken as superfluous. Under Rule 81(a)(1) the rules do not apply

to bankruptcy proceedings except as they may be made applicable by

order of the Supreme Court. Rule 66 is applicable to what is

commonly known as a federal "chancery" or "equity" receiver, or

similar type of court officer. It is not designed to regulate or

affect receivers in bankruptcy, which are governed by the

Bankruptcy Act and the General Orders. Since the Federal Rules are

applicable in bankruptcy by virtue of General Orders in Bankruptcy

36 and 37 [following section 53 of Title 11, U.S.C.] only to the

extent that they are not inconsistent with the Bankruptcy Act or

the General Orders, Rule 66 is not applicable to bankruptcy

receivers. See 1 Collier on Bankruptcy (14th ed. by Moore and

Oglebay) ¶¶ 2.23-2.36.

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

Title 28, U.S.C., Secs. 754 and 959(a), state the capacity of a

federal receiver to sue or be sued in a federal court, and a

repetitive statement of the statute in Rule 66 is confusing and

undesirable. See also Note to Rule 17(b), supra.

-End-

-CITE-

28 USC APPENDIX Rule 67 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 67. Deposit in Court

-STATUTE-

In an action in which any part of the relief sought is a judgment

for a sum of money or the disposition of a sum of money or the

disposition of any other thing capable of delivery, a party, upon

notice to every other party, and by leave of court, may deposit

with the court all or any part of such sum or thing, whether or not

that party claims all or any part of the sum or thing. The party

making the deposit shall serve the order permitting deposit on the

clerk of the court. Money paid into court under this rule shall be

deposited and withdrawn in accordance with the provisions of Title

28, U.S.C., Secs. 2041, and 2042; the Act of June 26, 1934, c. 756,

Sec. 23, as amended (48 Stat. 1236, 58 Stat. 845), U.S.C., Title

31, Sec. 725v; (!1) or any like statute. The fund shall be

deposited in an interest-bearing account or invested in an

interest-bearing instrument approved by the court.

-SOURCE-

(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 28, 1983, eff.

Aug. 1, 1983.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

This rule provides for deposit in court generally, continuing

similar special provisions contained in such statutes as U.S.C.,

Title 28, Sec. 41(26) [now 1335, 1397, 2361] (Original jurisdiction

of bills of interpleader, and of bills in the nature of

interpleader). See generally Howard v. United States, 184 U.S. 676

(1902); United States Supreme Court Admiralty Rules (1920), Rules

37 (Bringing Funds into Court), 41 (Funds in Court Registry), and

42 (Claims Against Proceeds in Registry). With the first sentence,

compare English Rules Under the Judicature Act (The Annual

Practice, 1937) O. 22, r. 1(1).

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

The first amendment substitutes the present statutory reference.

Since the Act of June 26, 1934, was amended by Act of December

21, 1944, 58 Stat. 845, correcting references are made.

NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT

Rule 67 has been amended in three ways. The first change is the

addition of the clause in the first sentence. Some courts have

construed the present rule to permit deposit only when the party

making it claims no interest in the fund or thing deposited. E.g.,

Blasin-Stern v. Beech-Nut Life Savers Corp., 429 F.Supp. 533 (D.

Puerto Rico 1975); Dinkins v. General Aniline & Film Corp., 214

F.Supp. 281 (S.D.N.Y. 1963). However, there are situations in which

a litigant may wish to be relieved of responsibility for a sum or

thing, but continue to claim an interest in all or part of it. In

these cases the deposit-in-court procedure should be available; in

addition to the advantages to the party making the deposit, the

procedure gives other litigants assurance that any judgment will be

collectable. The amendment is intended to accomplish that.

The second change is the addition of a requirement that the order

of deposit be served on the clerk of the court in which the sum or

thing is to be deposited. This is simply to assure that the clerk

knows what is being deposited and what his responsibilities are

with respect to the deposit. The latter point is particularly

important since the rule as amended contemplates that deposits will

be placed in interest-bearing accounts; the clerk must know what

treatment has been ordered for the particular deposit.

The third change is to require that any money be deposited in an

interest-bearing account or instrument approved by the court.

-REFTEXT-

REFERENCES IN TEXT

Act of June 26, 1934, c. 756, Sec. 23, as amended (48 Stat. 1236,

58 Stat. 845), 31 U.S.C. Sec. 725v, referred to in text, was

repealed by Pub. L. 97-258, Sec. 5(b), Sept. 13, 1982, 96 Stat.

1074, the first section of which enacted Title 31, Money and

Finance. Insofar as not superseded by sections 2041 and 2042 of

Title 28, Judiciary and Judicial Procedure, the Act of June 26,

1934, Sec. 23, as amended (31 U.S.C. 725v) was reenacted as

sections 572a and 2043 of Title 28 by Pub. L. 97-258, Sec. 2(g)(3),

(4).

-FOOTNOTE-

(!1) See References in Text note below.

-End-

-CITE-

28 USC APPENDIX Rule 68 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 68. Offer of Judgment

-STATUTE-

At any time more than 10 days before the trial begins, a party

defending against a claim may serve upon the adverse party an offer

to allow judgment to be taken against the defending party for the

money or property or to the effect specified in the offer, with

costs then accrued. If within 10 days after the service of the

offer the adverse party serves written notice that the offer is

accepted, either party may then file the offer and notice of

acceptance together with proof of service thereof and thereupon the

clerk shall enter judgment. An offer not accepted shall be deemed

withdrawn and evidence thereof is not admissible except in a

proceeding to determine costs. If the judgment finally obtained by

the offeree is not more favorable than the offer, the offeree must

pay the costs incurred after the making of the offer. The fact that

an offer is made but not accepted does not preclude a subsequent

offer. When the liability of one party to another has been

determined by verdict or order or judgment, but the amount or

extent of the liability remains to be determined by further

proceedings, the party adjudged liable may make an offer of

judgment, which shall have the same effect as an offer made before

trial if it is served within a reasonable time not less than 10

days prior to the commencement of hearings to determine the amount

or extent of liability.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff.

July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

See 2 Minn. Stat. (Mason, 1927) Sec. 9323; 4 Mont. Rev. Codes

Ann. (1935) Sec. 9770; N.Y.C.P.A. (1937) Sec. 177.

For the recovery of costs against the United States, see Rule

54(d).

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

The third sentence of Rule 68 has been altered to make clear that

evidence of an unaccepted offer is admissible in a proceeding to

determine the costs of the action but is not otherwise admissible.

The two sentences substituted for the deleted last sentence of

the rule assure a party the right to make a second offer where the

situation permits - as, for example, where a prior offer was not

accepted but the plaintiff's judgment is nullified and a new trial

ordered, whereupon the defendant desires to make a second offer. It

is implicit, however, that as long as the case continues - whether

there be a first, second or third trial - and the defendant makes

no further offer, his first and only offer will operate to save him

the costs from the time of that offer if the plaintiff ultimately

obtains a judgment less than the sum offered. In the case of

successive offers not accepted, the offeror is saved the costs

incurred after the making of the offer which was equal to or

greater than the judgment ultimately obtained. These provisions

should serve to encourage settlements and avoid protracted

litigation.

The phrase "before the trial begins", in the first sentence of

the rule, has been construed in Cover v. Chicago Eye Shield Co.

(C.C.A.7th, 1943) 136 F.(2d) 374, cert. den. (1943) 320 U.S. 749.

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

This logical extension of the concept of offer of judgment is

suggested by the common admiralty practice of determining liability

before the amount of liability is determined.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 69 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 69. Execution

-STATUTE-

(a) In General. Process to enforce a judgment for the payment of

money shall be a writ of execution, unless the court directs

otherwise. The procedure on execution, in proceedings supplementary

to and in aid of a judgment, and in proceedings on and in aid of

execution shall be in accordance with the practice and procedure of

the state in which the district court is held, existing at the time

the remedy is sought, except that any statute of the United States

governs to the extent that it is applicable. In aid of the judgment

or execution, the judgment creditor or a successor in interest when

that interest appears of record, may obtain discovery from any

person, including the judgment debtor, in the manner provided in

these rules or in the manner provided by the practice of the state

in which the district court is held.

(b) Against Certain Public Officers. When a judgment has been

entered against a collector or other officer of revenue under the

circumstances stated in Title 28, U.S.C., Sec. 2006, or against an

officer of Congress in an action mentioned in the Act of March 3,

1875, ch. 130, Sec. 8 (18 Stat. 401), U.S.C., Title 2, Sec. 118,

and when the court has given the certificate of probable cause for

the officer's act as provided in those statutes, execution shall

not issue against the officer or the officer's property but the

final judgment shall be satisfied as provided in such statutes.

-SOURCE-

(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff.

July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). This follows in substance U.S.C., Title

28, [former] Secs. 727 (Executions as provided by State laws) and

729 [now Title 42, Sec. 1988] (Proceedings in vindication of civil

rights), except that, as in the similar case of attachments (see

note to Rule 64), the rule specifies the applicable State law to be

that of the time when the remedy is sought, and thus renders

unnecessary, as well as supersedeas, local district court rules.

Statutes of the United States on execution, when applicable,

govern under this rule. Among these are:

U.S.C., Title 12:

Sec. 91 (Transfers by bank and other acts in contemplation of

insolvency)

Sec. 632 (Jurisdiction of United States district courts in cases

arising out of foreign banking jurisdiction where Federal

reserve bank a party)

U.S.C., Title 19:

Sec. 199 (Judgments for customs duties, how payable)

U.S.C., Title 26:

Sec. 1610(a) [former] (Surrender of property subject to distraint)

U.S.C., Title 28:

Sec. 122 [now 1656] (Creation of new district or transfer of

territory; lien)

Sec. 350 [now 2101] (Time for making application for appeal or

certiorari; stay pending application for certiorari)

Sec. 489 [now 547] (District Attorneys; reports to Department of

Justice)

Sec. 574 [now 1921] (Marshals, fees enumerated)

Sec. 786 [former] (Judgments for duties; collected in coin)

Sec. 811 [now 1961] (Interest on judgments)

Sec. 838 [former] (Executions; run in all districts of State)

Sec. 839 [now 2413] (Executions; run in every State and Territory)

Sec. 840 [former] (Executions; stay on conditions), as modified by

Rule 62(b).

Sec. 841 [former] (Executions; stay of one term), as modified by

Rule 62(f)

Sec. 842 [now 2006] (Executions; against officers of revenue in

cases of probable cause), as incorporated in Subdivision (b)

of this rule

Sec. 843 [now 2007] (Imprisonment for debt)

Sec. 844 [now 2007] (Imprisonment for debt; discharge according to

State laws)

Sec. 845 [now 2007] (Imprisonment for debt; jail limits)

Sec. 846 [now 2005] (Fieri Facias; appraisal of goods; appraisers)

Sec. 847 [now 2001] (Sales; real property under order or decree)

Sec. 848 [now 2004] (Sales; personal property under order or

decree)

Sec. 849 [now 2002] (Sales; necessity of notice)

Sec. 850 [now 2003] (Sales; death of marshal after levy or after

sale)

Sec. 869 [former] (Bond in former error and on appeal) as

incorporated in Rule 73(c)

Sec. 874 [former] (Supersedeas), as modified by Rules 62(d) and

73(d)

U.S.C., Title 31:

Sec. 195 [now 3715] (Purchase on execution)

U.S.C., Title 33:

Sec. 918 (Collection of defaulted payments)

U.S.C., Title 49:

Sec. 74(g) [former] (Causes of action arising out of Federal

control of railroads; execution and other process)

Special statutes of the United States on exemption from execution

are also continued. Among these are:

U.S.C., Title 2:

Sec. 118 (Actions against officers of Congress for official acts)

U.S.C., Title 5:

Sec. 729 [see 8346, 8470] (Federal employees retirement annuities

not subject to assignment, execution, levy, or other legal

process)

U.S.C., Title 10:

Sec. 610 [now 3690, 8690] (Exemption of enlisted men from arrest

on civil process)

U.S.C., Title 22:

Sec. 21(h) [see 4060] (Foreign service retirement and disability

system; establishment; rules and regulations; annuities;

nonassignable; exemption from legal process)

U.S.C., Title 33:

Sec. 916 (Assignment and exemption from claims of creditors)

Longshoremen's and Harborworkers' Compensation Act)

U.S.C., Title 38:

Sec. 54 [see 5301] (Attachment, levy or seizure of moneys due

pensioners prohibited)

Sec. 393 [former] (Army and Navy Medal of Honor Roll; pensions

additional to other pensions; liability to attachment, etc.)

Compare Title 34, Sec. 365(c) (Medal of Honor Roll; special

pension to persons enrolled)

Sec. 618 [see 5301] (Benefits exempt from seizure under process

and taxation; no deductions for indebtedness to United

States)

U.S.C., Title 43:

Sec. 175 (Exemption from execution of homestead land)

U.S.C., Title 48:

Sec. 1371o (Panama Canal and railroad retirement annuities,

exemption from execution and so forth)

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 SUPPLEMENTARY NOTE

With respect to the provisions of the Soldiers' and Sailors'

Civil Relief Act of 1940 (50 U.S.C. [App.] Sec. 501 et seq.) see

Notes to Rules 62 and 64 herein.

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

The amendment substitutes the present statutory reference.

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

The amendment assures that, in aid of execution on a judgment,

all discovery procedures provided in the rules are available and

not just discovery via the taking of a deposition. Under the

present language, one court has held that Rule 34 discovery is

unavailable to the judgment creditor. M. Lowenstein & Sons, Inc. v.

American Underwear Mfg. Co., 11 F.R.D. 172 (E.D.Pa. 1951).

Notwithstanding the language, and relying heavily on legislative

history referring to Rule 33, the Fifth Circuit has held that a

judgment creditor may invoke Rule 33 interrogatories. United States

v. McWhirter, 376 F.2d 102 (5th Cir. 1967). But the court's

reasoning does not extend to discovery except as provided in Rules

26-33. One commentator suggests that the existing language might

properly be stretched to all discovery, 7 Moore's Federal Practice

¶ 69.05[1] (2d ed. 1966), but another believes that a rules

amendment is needed. 3 Barron & Holtzoff, Federal Practice and

Procedure 1484 (Wright ed. 1958). Both commentators and the court

in McWhirter are clear that, as a matter of policy, Rule 69 should

authorize the use of all discovery devices provided in the rules.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 70 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 70. Judgment for Specific Acts; Vesting Title

-STATUTE-

If a judgment directs a party to execute a conveyance of land or

to deliver deeds or other documents or to perform any other

specific act and the party fails to comply within the time

specified, the court may direct the act to be done at the cost of

the disobedient party by some other person appointed by the court

and the act when so done has like effect as if done by the party.

On application of the party entitled to performance, the clerk

shall issue a writ of attachment or sequestration against the

property of the disobedient party to compel obedience to the

judgment. The court may also in proper cases adjudge the party in

contempt. If real or personal property is within the district, the

court in lieu of directing a conveyance thereof may enter a

judgment divesting the title of any party and vesting it in others

and such judgment has the effect of a conveyance executed in due

form of law. When any order or judgment is for the delivery of

possession, the party in whose favor it is entered is entitled to a

writ of execution or assistance upon application to the clerk.

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Compare [former] Equity Rules 7 (Process, Mesne and Final), 8

(Enforcement of Final Decrees), and 9 (Writ of Assistance). To

avoid possible confusion, both old and new denominations for

attachment (sequestration) and execution (assistance) are used in

this rule. Compare with the provision in this rule that the

judgment may itself vest title, 6 Tenn.Ann.Code (Williams, 1934),

Sec. 10594; 2 Conn.Gen.Stat. (1930), Sec. 5455; N.M.Stat.Ann.

(Courtright, 1929), Sec. 117-117; 2 Ohio Gen.Code Ann. (Page,

1926), Sec. 11590; and England, Supreme Court of Judicature Act

(1925), Sec. 47.

-End-

-CITE-

28 USC APPENDIX Rule 71 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 71. Process in Behalf of and Against Persons Not Parties

-STATUTE-

When an order is made in favor of a person who is not a party to

the action, that person may enforce obedience to the order by the

same process as if a party; and, when obedience to an order may be

lawfully enforced against a person who is not a party, that person

is liable to the same process for enforcing obedience to the order

as if a party.

-SOURCE-

(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Compare [former] Equity Rule 11 (Process in Behalf of and Against

Persons Not Parties). Compare also Terrell v. Allison, 21 Wall.

289, 22 L.Ed. 634 (U.C., 1875); Farmers' Loan and Trust Co. v.

Chicago and A. Ry. Co., 44 Fed. 653 (C.C.Ind., 1890); Robert

Findlay Mfg. Co. v. Hygrade Lighting Fixture Corp., 288 Fed. 80

(E.D.N.Y., 1923); Thompson v. Smith, Fed.Cas.No. 13,977 (C.C.Minn.,

1870).

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX IX. SPECIAL PROCEEDINGS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IX. SPECIAL PROCEEDINGS

-HEAD-

IX. SPECIAL PROCEEDINGS

-End-

-CITE-

28 USC APPENDIX Rule 71A 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IX. SPECIAL PROCEEDINGS

-HEAD-

Rule 71A. Condemnation of Property

-STATUTE-

(a) Applicability of Other Rules. The Rules of Civil Procedure

for the United States District Courts govern the procedure for the

condemnation of real and personal property under the power of

eminent domain, except as otherwise provided in this rule.

(b) Joinder of Properties. The plaintiff may join in the same

action one or more separate pieces of property, whether in the same

or different ownership and whether or not sought for the same use.

(c) Complaint.

(1) Caption. The complaint shall contain a caption as provided

in Rule 10(a), except that the plaintiff shall name as defendants

the property, designated generally by kind, quantity, and

location, and at least one of the owners of some part of or

interest in the property.

(2) Contents. The complaint shall contain a short and plain

statement of the authority for the taking, the use for which the

property is to be taken, a description of the property sufficient

for its identification, the interests to be acquired, and as to

each separate piece of property a designation of the defendants

who have been joined as owners thereof or of some interest

therein. Upon the commencement of the action, the plaintiff need

join as defendants only the persons having or claiming an

interest in the property whose names are then known, but prior to

any hearing involving the compensation to be paid for a piece of

property, the plaintiff shall add as defendants all persons

having or claiming an interest in that property whose names can

be ascertained by a reasonably diligent search of the records,

considering the character and value of the property involved and

the interests to be acquired, and also those whose names have

otherwise been learned. All others may be made defendants under

the designation "Unknown Owners." Process shall be served as

provided in subdivision (d) of this rule upon all defendants,

whether named as defendants at the time of the commencement of

the action or subsequently added, and a defendant may answer as

provided in subdivision (e) of this rule. The court meanwhile may

order such distribution of a deposit as the facts warrant.

(3) Filing. In addition to filing the complaint with the court,

the plaintiff shall furnish to the clerk at least one copy

thereof for the use of the defendants and additional copies at

the request of the clerk or of a defendant.

(d) Process.

(1) Notice; Delivery. Upon the filing of the complaint the

plaintiff shall forthwith deliver to the clerk joint or several

notices directed to the defendants named or designated in the

complaint. Additional notices directed to defendants subsequently

added shall be so delivered. The delivery of the notice and its

service have the same effect as the delivery and service of the

summons under Rule 4.

(2) Same; Form. Each notice shall state the court, the title of

the action, the name of the defendant to whom it is directed,

that the action is to condemn property, a description of the

defendant's property sufficient for its identification, the

interest to be taken, the authority for the taking, the uses for

which the property is to be taken, that the defendant may serve

upon the plaintiff's attorney an answer within 20 days after

service of the notice, and that the failure so to serve an answer

constitutes a consent to the taking and to the authority of the

court to proceed to hear the action and to fix the compensation.

The notice shall conclude with the name of the plaintiff's

attorney and an address within the district in which action is

brought where the attorney may be served. The notice need contain

a description of no other property than that to be taken from the

defendants to whom it is directed.

(3) Service of Notice.

(A) Personal Service. Personal service of the notice (but

without copies of the complaint) shall be made in accordance

with Rule 4 upon a defendant whose residence is known and who

resides within the United States or a territory subject to the

administrative or judicial jurisdiction of the United States.

(B) Service by Publication. Upon the filing of a certificate

of the plaintiff's attorney stating that the attorney believes

a defendant cannot be personally served, because after diligent

inquiry within the state in which the complaint is filed the

defendant's place of residence cannot be ascertained by the

plaintiff or, if ascertained, that it is beyond the territorial

limits of personal service as provided in this rule, service of

the notice shall be made on this defendant by publication in a

newspaper published in the county where the property is

located, or if there is no such newspaper, then in a newspaper

having a general circulation where the property is located,

once a week for not less than three successive weeks. Prior to

the last publication, a copy of the notice shall also be mailed

to a defendant who cannot be personally served as provided in

this rule but whose place of residence is then known. Unknown

owners may be served by publication in like manner by a notice

addressed to "Unknown Owners."

Service by publication is complete upon the date of the last

publication. Proof of publication and mailing shall be made by

certificate of the plaintiff's attorney, to which shall be

attached a printed copy of the published notice with the name

and dates of the newspaper marked thereon.

(4) Return; Amendment. Proof of service of the notice shall be

made and amendment of the notice or proof of its service allowed

in the manner provided for the return and amendment of the

summons under Rule 4.

(e) Appearance or Answer. If a defendant has no objection or

defense to the taking of the defendant's property, the defendant

may serve a notice of appearance designating the property in which

the defendant claims to be interested. Thereafter, the defendant

shall receive notice of all proceedings affecting it. If a

defendant has any objection or defense to the taking of the

property, the defendant shall serve an answer within 20 days after

the service of notice upon the defendant. The answer shall identify

the property in which the defendant claims to have an interest,

state the nature and extent of the interest claimed, and state all

the defendant's objections and defenses to the taking of the

property. A defendant waives all defenses and objections not so

presented, but at the trial of the issue of just compensation,

whether or not the defendant has previously appeared or answered,

the defendant may present evidence as to the amount of the

compensation to be paid for the property, and the defendant may

share in the distribution of the award. No other pleading or motion

asserting any additional defense or objection shall be allowed.

(f) Amendment of Pleadings. Without leave of court, the plaintiff

may amend the complaint at any time before the trial of the issue

of compensation and as many times as desired, but no amendment

shall be made which will result in a dismissal forbidden by

subdivision (i) of this rule. The plaintiff need not serve a copy

of an amendment, but shall serve notice of the filing, as provided

in Rule 5(b), upon any party affected thereby who has appeared and,

in the manner provided in subdivision (d) of this rule, upon any

party affected thereby who has not appeared. The plaintiff shall

furnish to the clerk of the court for the use of the defendants at

least one copy of each amendment and shall furnish additional

copies on the request of the clerk or of a defendant. Within the

time allowed by subdivision (e) of this rule a defendant may serve

an answer to the amended pleading, in the form and manner and with

the same effect as there provided.

(g) Substitution of Parties. If a defendant dies or becomes

incompetent or transfers an interest after the defendant's joinder,

the court may order substitution of the proper party upon motion

and notice of hearing. If the motion and notice of hearing are to

be served upon a person not already a party, service shall be made

as provided in subdivision (d)(3) of this rule.

(h) Trial. If the action involves the exercise of the power of

eminent domain under the law of the United States, any tribunal

specially constituted by an Act of Congress governing the case for

the trial of the issue of just compensation shall be the tribunal

for the determination of that issue; but if there is no such

specially constituted tribunal any party may have a trial by jury

of the issue of just compensation by filing a demand therefor

within the time allowed for answer or within such further time as

the court may fix, unless the court in its discretion orders that,

because of the character, location, or quantity of the property to

be condemned, or for other reasons in the interest of justice, the

issue of compensation shall be determined by a commission of three

persons appointed by it.

In the event that a commission is appointed the court may direct

that not more than two additional persons serve as alternate

commissioners to hear the case and replace commissioners who, prior

to the time when a decision is filed, are found by the court to be

unable or disqualified to perform their duties. An alternate who

does not replace a regular commissioner shall be discharged after

the commission renders its final decision. Before appointing the

members of the commission and alternates the court shall advise the

parties of the identity and qualifications of each prospective

commissioner and alternate and may permit the parties to examine

each such designee. The parties shall not be permitted or required

by the court to suggest nominees. Each party shall have the right

to object for valid cause to the appointment of any person as a

commissioner or alternate. If a commission is appointed it shall

have the powers of a master provided in subdivision (c) of Rule 53

and proceedings before it shall be governed by the provisions of

paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action

and report shall be determined by a majority and its findings and

report shall have the effect, and be dealt with by the court in

accordance with the practice, prescribed in paragraph (2) of

subdivision (e) of Rule 53. Trial of all issues shall otherwise be

by the court.

(i) Dismissal of Action.

(1) As of Right. If no hearing has begun to determine the

compensation to be paid for a piece of property and the plaintiff

has not acquired the title or a lesser interest in or taken

possession, the plaintiff may dismiss the action as to that

property, without an order of the court, by filing a notice of

dismissal setting forth a brief description of the property as to

which the action is dismissed.

(2) By Stipulation. Before the entry of any judgment vesting

the plaintiff with title or a lesser interest in or possession of

property, the action may be dismissed in whole or in part,

without an order of the court, as to any property by filing a

stipulation of dismissal by the plaintiff and the defendant

affected thereby; and, if the parties so stipulate, the court may

vacate any judgment that has been entered.

(3) By Order of the Court. At any time before compensation for

a piece of property has been determined and paid and after motion

and hearing, the court may dismiss the action as to that

property, except that it shall not dismiss the action as to any

part of the property of which the plaintiff has taken possession

or in which the plaintiff has taken title or a lesser interest,

but shall award just compensation for the possession, title or

lesser interest so taken. The court at any time may drop a

defendant unnecessarily or improperly joined.

(4) Effect. Except as otherwise provided in the notice, or

stipulation of dismissal, or order of the court, any dismissal is

without prejudice.

(j) Deposit and Its Distribution. The plaintiff shall deposit

with the court any money required by law as a condition to the

exercise of the power of eminent domain; and, although not so

required, may make a deposit when permitted by statute. In such

cases the court and attorneys shall expedite the proceedings for

the distribution of the money so deposited and for the

ascertainment and payment of just compensation. If the compensation

finally awarded to any defendant exceeds the amount which has been

paid to that defendant on distribution of the deposit, the court

shall enter judgment against the plaintiff and in favor of that

defendant for the deficiency. If the compensation finally awarded

to any defendant is less than the amount which has been paid to

that defendant, the court shall enter judgment against that

defendant and in favor of the plaintiff for the overpayment.

(k) Condemnation Under a State's Power of Eminent Domain. The

practice as herein prescribed governs in actions involving the

exercise of the power of eminent domain under the law of a state,

provided that if the state law makes provision for trial of any

issue by jury, or for trial of the issue of compensation by jury or

commission or both, that provision shall be followed.

(l) Costs. Costs are not subject to Rule 54(d).

-SOURCE-

(As added Apr. 30, 1951, eff. Aug. 1, 1951; amended Jan. 21, 1963,

eff. July 1, 1963; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987,

eff. Aug. 1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Pub. L.

100-690, title VII, Sec. 7050, Nov. 18, 1988, 102 Stat. 4401; Apr.

22, 1993, eff. Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1951

Supplementary report

The Court will remember that at its conference on December 2,

1948, the discussion was confined to subdivision (h) of the rule (*

* *), the particular question being whether the tribunal to award

compensation should be a commission or a jury in cases where the

Congress has not made specific provision on the subject. The

Advisory Committee was agreed from the outset that a rule should

not be promulgated which would overturn the decision of the

Congress as to the kind of tribunal to fix compensation, provided

that the system established by Congress was found to be working

well. We found two instances where the Congress had specified the

kind of tribunal to fix compensation. One case was the District of

Columbia (U.S.C., [former] Title 40, Secs. 361-386) where a rather

unique system exists under which the court is required in all cases

to order the selection of a "jury" of five from among not less than

twenty names drawn from "the special box provided by law." They

must have the usual qualifications of jurors and in addition must

be freeholders of the District and not in the service of the United

States or the District. That system has been in effect for many

years, and our inquiry revealed that it works well under the

conditions prevailing in the District, and is satisfactory to the

courts of the District, the legal profession and to property

owners.

The other instance is that of the Tennessee Valley Authority,

where the act of Congress (U.S.C., Title 16, Sec. 831x) provides

that compensation is fixed by three disinterested commissioners

appointed by the court, whose award goes before the District Court

for confirmation or modification. The Advisory Committee made a

thorough inquiry into the practical operation of the TVA commission

system. We obtained from counsel for the TVA the results of their

experience, which afforded convincing proof that the commission

system is preferable under the conditions affecting TVA and that

the jury system would not work satisfactorily. We then, under date

of February 6, 1947, wrote every Federal judge who had ever sat in

a TVA condemnation case, asking his views as to whether the

commission system is satisfactory and whether a jury system should

be preferred. Of 21 responses from the judges 17 approved the

commission system and opposed the substitution of a jury system for

the TVA. Many of the judges went further and opposed the use of

juries in any condemnation cases. Three of the judges preferred the

jury system, and one dealt only with the TVA provision for a three

judge district court. The Advisory Committee has not considered

abolition of the three judge requirement of the TVA Act, because it

seemed to raise a question of jurisdiction, which cannot be altered

by rule. Nevertheless the Department of Justice continued its

advocacy of the jury system for its asserted expedition and

economy; and others favored a uniform procedure. In consequence of

these divided counsels the Advisory Committee was itself divided,

but in its May 1948 Report to the Court recommended the following

rule as approved by a majority (* * *):

(h) Trial. If the action involves the exercise of the power of

eminent domain under the law of the United States, any tribunal

specially constituted by an Act of Congress governing the case for

the trial of the issue of just compensation shall be the tribunal

for the determination of that issue; but if there is no such

specially constituted tribunal any party may have a trial by jury

of the issue of just compensation by filing a demand therefor

within the time allowed for answer or within such further time as

the court may fix. Trial of all issues shall otherwise be by the

court.

The effect of this was to preserve the existing systems in the

District of Columbia and in TVA cases, but to provide for a jury to

fix compensation in all other cases.

Before the Court's conference of December 2, 1948, the Chief

Justice informed the Committee that the Court was particularly

interested in the views expressed by Judge John Paul, judge of the

United States District Court for the Western District of Virginia,

in a letter from him to the chairman of the Advisory Committee,

dated February 13, 1947. Copies of all the letters from judges who

had sat in TVA cases had been made available to the Court, and this

letter from Judge Paul is one of them. Judge Paul strongly opposed

jury trials and recommended the commission system in large projects

like the TVA, and his views seemed to have impressed the Court and

to have been the occasion for the conference.

The reasons which convinced the Advisory Committee that the use

of commissioners instead of juries is desirable in TVA cases were

these:

1. The TVA condemns large areas of land of similar kind,

involving many owners. Uniformity in awards is essential. The

commission system tends to prevent discrimination and provide for

uniformity in compensation. The jury system tends to lack of

uniformity. Once a reasonable and uniform standard of values for

the area has been settled by a commission, litigation ends and

settlements result.

2. Where large areas are involved many small landowners reside at

great distances from the place where a court sits. It is a great

hardship on humble people to have to travel long distances to

attend a jury trial. A commission may travel around and receive the

evidence of the owner near his home.

3. It is impracticable to take juries long distances to view the

premises.

4. If the cases are tried by juries the burden on the time of the

courts is excessive.

These considerations are the very ones Judge Paul stressed in his

letter. He pointed out that they applied not only to the TVA but to

other large governmental projects, such as flood control,

hydroelectric power, reclamation, national forests, and others. So

when the representatives of the Advisory Committee appeared at the

Court's conference December 2, 1948, they found it difficult to

justify the proposed provision in subdivision (h) of the rule that

a jury should be used to fix compensation in all cases where

Congress had not specified the tribunal. If our reasons for

preserving the TVA system were sound, provision for a jury in

similar projects of like magnitude seemed unsound.

Aware of the apparent inconsistency between the acceptance of the

TVA system and the provision for a jury in all other cases, the

members of the Committee attending the conference of December 2,

1948, then suggested that in the other cases the choice of jury or

commission be left to the discretion of the District Court, going

back to a suggestion previously made by Committee members and

reported at page 15 of the Preliminary Draft of June 1947. They

called the attention of the Court to the fact that the entire

Advisory Committee had not been consulted about this suggestion and

proposed that the draft be returned to the Committee for further

consideration, and that was done.

The proposal we now make for subdivision (h) is as follows:

(h) Trial. If the action involves the exercise of the power of

eminent domain under the law of the United States, any tribunal

specially constituted by an Act of Congress governing the case for

the trial of the issue of just compensation shall be the tribunal

for the determination of that issue; but if there is no such

specially constituted tribunal any party may have a trial by jury

of the issue of just compensation by filing a demand therefor

within the time allowed for answer or within such further time as

the court may fix, unless the court in its discretion orders that,

because of the character, location, or quantity of the property to

be condemned, or for other reasons in the interest of justice, the

issue of compensation shall be determined by a commission of three

persons appointed by it. If a commission is appointed it shall have

the powers of a master provided in subdivision (c) of Rule 53

proceedings before it shall be governed by the provisions of

paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action

and report shall be determined by a majority and its findings and

report shall have the effect, and be dealt with by the court in

accordance with the practice, prescribed in paragraph (2) of

subdivision (e) of Rule 53. Trial of all issues shall otherwise be

by the court.

In the 1948 draft the Committee had been almost evenly divided as

between jury or commission and that made it easy for us to agree on

the present draft. It would be difficult to state in a rule the

various conditions to control the District Court in its choice and

we have merely stated generally the matters which should be

considered by the District Court.

The rule as now drafted seems to meet Judge Paul's objection. In

large projects like the TVA the court may decide to use a

commission. In a great number of cases involving only sites for

buildings or other small areas, where use of a jury is appropriate,

a jury may be chosen. The District Court's discretion may also be

influenced by local preference or habit, and the preference of the

Department of Justice and the reasons for its preference will

doubtless be given weight. The Committee is convinced that there

are some types of cases in which use of a commission is preferable

and others in which a jury may be appropriately used, and that it

would be a mistake to provide that the same kind of tribunal should

be used in all cases. We think the available evidence clearly leads

to that conclusion.

When this suggestion was made at the conference of December 2,

1948, representatives of the Department of Justice opposed it,

expressing opposition to the use of a commission in any case. Their

principal ground for opposition to commissions was then based on

the assertion that the commission system is too expensive because

courts allow commissioners too large compensation. The obvious

answer to that is that the compensation of commissioners ought to

be fixed or limited by law, as was done in the TVA Act, and the

agency dealing with appropriations - either the Administrative

Office or some other interested department of the government -

should correct that evil, if evil there be, by obtaining such

legislation. Authority to promulgate rules of procedure does not

include power to fix compensation of government employees. The

Advisory Committee is not convinced that even without such

legislation the commission system is more expensive than the jury

system. The expense of jury trials includes not only the per diem

and mileage of the jurors impaneled for a case but like items for

the entire venire. In computing cost of jury trials, the salaries

of court officials, judges, clerks, marshals and deputies must be

considered. No figures have been given to the Committee to

establish that the cost of the commission system is the greater.

We earnestly recommend the rule as now drafted for promulgation

by the Court, in the public interest.

The Advisory Committee have given more time to this rule,

including time required for conferences with the Department of

Justice to hear statements of its representatives, than has been

required by any other rule. The rule may not be perfect but if

faults develop in practice they may be promptly cured. Certainly

the present conformity system is atrocious.

Under state practices, just compensation is normally determined

by one of three methods: by commissioners; by commissioners with a

right of appeal to and trial de novo before a jury; and by a jury,

without a commission. A trial to the court or to the court

including a master are, however, other methods that are

occasionally used. Approximately 5 states use only commissioners;

23 states use commissioners with a trial de novo before a jury; and

18 states use only the jury. This classification is advisedly

stated in approximate terms, since the same state may utilize

diverse methods, depending upon different types of condemnations or

upon the locality of the property, and since the methods used in a

few states do not permit of a categorical classification. To reject

the proposed rule and leave the situation as it is would not

satisfy the views of the Department of Justice. The Department and

the Advisory Committee agree that the use of a commission, with

appeal to a jury, is a wasteful system.

The Department of Justice has a voluminous "Manual on Federal

Eminent Domain," the 1940 edition of which has 948 pages with an

appendix of 73 more pages. The title page informs us the

preparation of the manual was begun during the incumbency of

Attorney General Cummings, was continued under Attorney General

Murphy, and completed during the incumbency of Attorney General

Jackson. The preface contains the following statement:

It should also be mentioned that the research incorporated in the

manual would be of invaluable assistance in the drafting of a new

uniform code, or rules of court, for federal condemnation

proceedings, which are now greatly confused, not only by the

existence of over seventy federal statutes governing condemnations

for different purposes - statutes which sometimes conflict with one

another - but also by the countless problems occasioned by the

requirements of conformity to state law. Progress of the work has

already demonstrated that the need for such reform exists.

It is not surprising that more than once Attorneys General have

asked the Advisory Committee to prepare a federal rule and rescue

the government from this morass.

The Department of Justice has twice tried and failed to persuade

the Congress to provide that juries shall be used in all

condemnation cases. The debates in Congress show that part of the

opposition to the Department of Justice's bills came from

representatives opposed to jury trials in all cases, and in part

from a preference for the conformity system. Our present proposal

opens the door for district judges to yield to local preferences on

the subject. It does much for the Department's points of view. It

is a great improvement over the present so-called conformity

system. It does away with the wasteful "double" system prevailing

in 23 states where awards by commissions are followed by jury

trials.

Aside from the question as to the choice of a tribunal to award

compensation, the proposed rule would afford a simple and improved

procedure.

We turn now to an itemized explanation of the other changes we

have made in the 1948 draft. Some of these result from recent

amendments to the Judicial Code. Others result from a

reconsideration by the Advisory Committee of provisions which we

thought could be improved.

1. In the amended Judicial Code, the district courts are

designated as "United States District Courts" instead of "District

Courts of the United States," and a corresponding change has been

made in the rule.

2. After the 1948 draft was referred back to the committee, the

provision in subdivision (c)(2), relating to naming defendants, * *

* which provided that the plaintiff shall add as defendants all

persons having or claiming an interest in that property whose names

can be ascertained by a search of the records to the extent

commonly made by competent searchers of title in the vicinity "in

light of the type and value of the property involved," the phrase

in quotation marks was changed to read "in the light of the

character and value of the property involved and the interests to

be acquired."

The Department of Justice made a counter proposal * * * that

there be substituted the words "reasonably diligent search of the

records, considering the type." When the American Bar Association

thereafter considered the draft, it approved the Advisory

Committee's draft of this subdivision, but said that it had no

objection to the Department's suggestion. Thereafter, in an effort

to eliminate controversy, the Advisory Committee accepted the

Department's suggestion as to (c)(2), using the word "character"

instead of the word "type."

The Department of Justice also suggested that in subdivision

(d)(3)(2) relating to service by publication, the search for a

defendant's residence as a preliminary to publication be limited to

the state in which the complaint is filed. Here again the American

Bar Association's report expressed the view that the Department's

suggestion was unobjectionable and the Advisory Committee thereupon

adopted it.

3. Subdivision (k) of the 1948 draft is as follows:

(k) Condemnation Under a State's Power of Eminent Domain. If the

action involves the exercise of the power of eminent domain under

the law of a state, the practice herein prescribed may be altered

to the extent necessary to observe and enforce any condition

affecting the substantial rights of a litigant attached by the

state law to the exercise of the state's power of eminent domain.

Occasionally condemnation cases under a state's power of eminent

domain reach a United States District Court because of diversity of

citizenship. Such cases are rare, but provision should be made for

them.

The 1948 draft of (k) required a district court to decide whether

a provision of state law specifying the tribunal to award

compensation is or is not a "condition" attached to the exercise of

the state's power. On reconsideration we concluded that it would be

wise to redraft (k) so as to avoid that troublesome question. As to

conditions in state laws which affect the substantial rights of a

litigant, the district courts would be bound to give them effect

without any rule on the subject. Accordingly we present two

alternative revisions. One suggestion supported by a majority of

the Advisory Committee is as follows:

(k) Condemnation Under a State's Power of Eminent Domain. The

practice herein prescribed governs in actions involving the

exercise of the power of eminent domain under the law of a state,

provided that if the state law makes provision for trial of any

issue by jury, or for trial of the issue of compensation by jury or

commission or both, that provision shall be followed.

The other is as follows:

(k) Condemnation Under a State's Power of Eminent Domain. The

practice herein prescribed governs in actions involving the

exercise of the power of eminent domain under the law of a state,

provided that if the state law gives a right to a trial by jury

such a trial shall in any case be allowed to the party demanding it

within the time permitted by these rules, and in that event no

hearing before a commission shall be had.

The first proposal accepts the state law as to the tribunals to

fix compensation, and in that respect leaves the parties in

precisely the same situation as if the case were pending in a state

court, including the use of a commission with appeal to a jury, if

the state law so provides. It has the effect of avoiding any

question as to whether the decisions in Erie R. Co. v. Tompkins and

later cases have application to a situation of this kind.

The second proposal gives the parties a right to a jury trial if

that is provided for by state law, but prevents the use of both

commission and jury. Those members of the Committee who favor the

second proposal do so because of the obvious objections to the

double trial, with a commission and appeal to a jury. As the

decisions in Erie R. Co. v. Tompkins and later cases may have a

bearing on this point, and the Committee is divided, we think both

proposals should be placed before the Court.

4. The provision * * * of the 1948 draft * * * prescribing the

effective date of the rule was drafted before the recent amendment

of the Judicial Code on that subject. On May 10, 1950, the

President approved an act which amended section 2072 of Title 28,

United States Code, to read as follows:

Such rules shall not take effect until they have been reported to

Congress by the Chief Justice at or after the beginning of a

regular session thereof but not later than the first day of May,

and until the expiration of 90 days after they have been thus

reported.

To conform to the statute now in force, we suggest a provision as

follows:

Effective Date. This Rule 71A and the amendment to Rule 81(a)

will take effect on August 1, 1951. Rule 71A governs all

proceedings in actions brought after it takes effect and also all

further proceedings in actions then pending, except to the extent

that in the opinion of the court its application in a particular

action pending when the rule takes effect would not be feasible or

would work injustice, in which event the former procedure applies.

If the rule is not reported to Congress by May 1, 1951, this

provision must be altered.

5. We call attention to the fact that the proposed rule does not

contain a provision for the procedure to be followed in order to

exercise the right of the United States to take immediate

possession or title, when the condemnation proceeding is begun.

There are several statutes conferring such a right which are cited

in the original notes to the May 1948 draft * * *. The existence of

this right is taken into account in the rule. In paragraph (c)(2),

* * * it is stated: "Upon the commencement of the action, the

plaintiff need join as defendants only the persons having or

claiming an interest in the property whose names are then known."

That is to enable the United States to exercise the right to

immediate title or possession without the delay involved in

ascertaining the names of all interested parties. The right is also

taken into account in the provision relating to dismissal

(paragraph (i) subdivisions (1), (2), and (3), * * *); also in

paragraph (j) relating to deposits and their distribution.

The Advisory Committee considered whether the procedure for

exercising the right should be specified in the rule and decided

against it, as the procedure now being followed seems to be giving

no trouble, and to draft a rule to fit all the statutes on the

subject might create confusion.

The American Bar Association has taken an active interest in a

rule for condemnation cases. In 1944 its House of Delegates adopted

a resolution which among other things resolved:

That before adoption by the Supreme Court of the United States of

any redraft of the proposed rule, time and opportunity should be

afforded to the bar to consider and make recommendations concerning

any such redraft.

Accordingly, in 1950 the revised draft was submitted to the

American Bar Association and its section of real property, probate

and trust law appointed a committee to consider it. That committee

was supplied with copies of the written statement from the

Department of Justice giving the reasons relied on by the

Department for preferring a rule to use juries in all cases. The

Advisory Committee's report was approved at a meeting of the

section of real property law, and by the House of Delegates at the

annual meeting of September 1950. The American Bar Association

report gave particular attention to the question whether juries or

commissions should be used to fix compensation, approved the

Advisory Committee's solution appearing in their latest draft

designed to allow use of commissions in projects comparable to the

TVA, and rejected the proposal for use of juries in all cases.

In November 1950 a committee of the Federal Bar Association, the

chairman of which was a Special Assistant to the Attorney General,

made a report which reflected the attitude of the Department of

Justice on the condemnation rule.

Aside from subdivision (h) about the tribunal to award

compensation the final draft of the condemnation rule here

presented has the approval of the American Bar Association and, we

understand, the Department of Justice, and we do not know of any

opposition to it. Subdivision (h) has the unanimous approval of the

Advisory Committee and has been approved by the American Bar

Association. The use of commissions in TVA cases, and, by fair

inference, in cases comparable to the TVA, is supported by 17 out

of 20 judges who up to 1947 had sat in TVA cases. The legal staff

of the TVA has vigorously objected to the substitution of juries

for commissions in TVA cases. We regret to report that the

Department of Justice still asks that subdivision (h) be altered to

provide for jury trials in all cases where Congress has not

specified the tribunal. We understand that the Department approves

the proposal that the system prevailing in 23 states for the

"double" trial, by commission with appeal to and trial de novo

before a jury, should be abolished, and also asks that on demand a

jury should be substituted for a commission, in those states where

use of a commission alone is now required. The Advisory Committee

has no evidence that commissions do not operate satisfactorily in

the case of projects comparable to the TVA.

Original report

General Statement. 1. Background. When the Advisory Committee was

formulating its recommendations to the Court concerning rules of

procedure, which subsequently became the Federal Rules of 1938, the

Committee concluded at an early stage not to fix the procedure in

condemnation cases. This is a matter principally involving the

exercise of the federal power of eminent domain, as very few

condemnation cases involving the state's power reach the United

States District Courts. The Committee's reasons at that time were

that inasmuch as condemnation proceedings by the United States are

governed by statutes of the United States, prescribing different

procedure for various agencies and departments of the government,

or, in the absence of such statutes, by local state practice under

the Conformity Act ([former] 40 U.S.C. sec. 258), it would be

extremely difficult to draft a uniform rule satisfactory to the

various agencies and departments of the government and to private

parties; and that there was no general demand for a uniform rule.

The Committee continued in that belief until shortly before the

preparation of the April 1937 Draft of the Rules, when the

officials of the Department of Justice having to do with

condemnation cases urgently requested the Committee to propose

rules on this subject. The Committee undertook the task and drafted

a Condemnation Rule which appeared for the first time as Rule 74 of

the April 1937 Draft. After the publication and distribution of

this initial draft many objections were urged against it by counsel

for various governmental agencies, whose procedure in condemnation

cases was prescribed by federal statutes. Some of these agencies

wanted to be excepted in whole or in part from the operation of the

uniform rule proposed in April 1937. And the Department of Justice

changed its position and stated that it preferred to have

government condemnations conducted by local attorneys familiar with

the state practice, which was applied under the Conformity Act

where the Acts of Congress do not prescribe the practice; that it

preferred to work under the Conformity Act without a uniform rule

of procedure. The profession generally showed little interest in

the proposed uniform rule. For these reasons the Advisory Committee

in its Final Report to the Court in November 1937 proposed that all

of Rule 74 be stricken and that the Federal Rules be made

applicable only to appeals in condemnation cases. See note to Rule

74 of the Final Report.

Some six or seven years later when the Advisory Committee was

considering the subject of amendments to the Federal Rules both

government officials and the profession generally urged the

adoption of some uniform procedure. This demand grew out of the

volume of condemnation proceedings instituted during the war, and

the general feeling of dissatisfaction with the diverse

condemnation procedures that were applicable in the federal courts.

A strongly held belief was that both the sovereign's power to

condemn and the property owner's right to compensation could be

promoted by a simplified rule. As a consequence the Committee

proposed a Rule 71A on the subject of condemnation in its

Preliminary Draft of May 1944. In the Second Preliminary Draft of

May 1945 this earlier proposed Rule 71A was, however, omitted. The

Committee did not then feel that it had sufficient time to prepare

a revised draft satisfactorily to it which would meet legitimate

objections made to the draft of May 1944. To avoid unduly delaying

the proposed amendments to existing rules the Committee concluded

to proceed in the regular way with the preparation of the

amendments to these rules and deal with the question of a

condemnation rule as an independent matter. As a consequence it

made no recommendations to the Court on condemnation in its Final

Report of Proposed Amendments of June 1946; and the amendments

which the Court adopted in December 1946 did not deal with

condemnation. After concluding its task relative to amendments, the

Committee returned to a consideration of eminent domain, its

proposed Rule 71A of May 1944, the suggestions and criticisms that

had been presented in the interim, and in June 1947 prepared and

distributed to the profession another draft of a proposed

condemnation rule. This draft contained several alternative

provisions, specifically called attention to and asked for opinion

relative to these matters, and in particular as to the constitution

of the tribunal to award compensation. The present draft was based

on the June 1947 formulation, in light of the advice of the

profession on both matters of substance and form.

2. Statutory Provisions. The need for a uniform condemnation rule

in the federal courts arises from the fact that by various statutes

Congress has prescribed diverse procedures for certain condemnation

proceedings, and, in the absence of such statutes, has prescribed

conformity to local state practice under [former] 40 U.S.C. Sec.

258. This general conformity adds to the diversity of procedure

since in the United States there are multifarious methods of

procedure in existence. Thus in 1931 it was said that there were

269 different methods of judicial procedure in different classes of

condemnation cases and 56 methods of nonjudicial or administrative

procedure. First Report of Judicial Council of Michigan, 1931, Sec.

46, pp. 55-56. These numbers have not decreased. Consequently, the

general requirement of conformity to state practice and procedure,

particularly where the condemnor is the United States, leads to

expense, delay and uncertainty. In advocacy of a uniform federal

rule, see Armstrong, Proposed Amendments to Federal Rules for Civil

Procedure 1944, 4 F.R.D. 124, 134; id., Report of the Advisory

Committee on Federal Rules of Civil Procedure Recommending

Amendments, 1946, 5 F.R.D. 339, 357.

There are a great variety of Acts of Congress authorizing the

exercise of the power of eminent domain by the United States and

its officers and agencies. These statutes for the most part do not

specify the exact procedure to be followed, but where procedure is

prescribed, it is by no means uniform.

The following are instances of Acts which merely authorize the

exercise of the power without specific declaration as to the

procedure:

U.S.C., Title 16:

Sec. 404c-11 (Mammoth Cave National Park; acquisition of lands,

interests in lands or other property for park by the Secretary

of the Interior).

Sec. 426d (Stones River National Park; acquisition of land for

parks by the Secretary of the Army).

Sec. 450aa (George Washington Carver National Monument;

acquisition of land by the Secretary of the Interior).

Sec. 517 (National forest reservation; title to lands to be

acquired by the Secretary of Agriculture).

U.S.C., Title 42:

Secs. 1805(b)(5), 1813(b) (Atomic Energy Act).

The following are instances of Acts which authorized condemnation

and declare that the procedure is to conform with that of similar

actions in state courts:

U.S.C., Title 16:

Sec. 423k (Richmond National Battlefield Park; acquisition of

lands by the Secretary of the Interior).

Sec. 714 (Exercise by water power licensee of power of eminent

domain).

U.S.C., Title 24:

Sec. 78 (Condemnation of land for the former National Home for

Disabled Volunteer Soldiers).

U.S.C., Title 33:

Sec. 591 (Condemnation of lands and materials for river and

harbor improvement by the Secretary of the Army).

U.S.C., Title 40:

Sec. 257 [now 3113] (Condemnation of realty for sites for public

building and for other public uses by the Secretary of the

Treasury authorized).

Sec. 258 [former] (Same procedure).

U.S.C., Title 50:

Sec. 171 (Acquisition of land by the Secretary of the Army for

national defense).

Sec. 172 (Acquisition of property by the Secretary of the Army,

etc., for production of lumber).

Sec. 632 App. (Second War Powers Act, 1942; acquisition of real

property for war purposes by the Secretary of the Army, the

Secretary of the Navy and others).

The following are Acts in which a more or less complete code of

procedure is set forth in connection with the taking:

U.S.C., Title 16:

Sec. 831x (Condemnation by Tennessee Valley Authority).

U.S.C., Title 40:

Secs. 361-386 [former] (Acquisition of lands in District of

Columbia for use of United States; condemnation).

3. Adjustment of Rule to Statutory Provisions. While it was

apparent that the principle of uniformity should be the basis for a

rule to replace the multiple diverse procedures set out above,

there remained a serious question as to whether an exception could

properly be made relative to the method of determining

compensation. Where Congress had provided for conformity to state

law the following were the general methods in use: an initial

determination by commissioners, with appeal to a judge; an initial

award, likewise made by commissioners, but with the appeal to a

jury; and determination by a jury without a previous award by

commissioners. In two situations Congress had specified the

tribunal to determine the issue of compensation: condemnation by

the Tennessee Valley Authority; and condemnation in the District of

Columbia. Under the TVA procedure the initial determination of

value is by three disinterested commissioners, appointed by the

court, from a locality other than the one in which the land lies.

Either party may except to the award of the commission; in that

case the exceptions are to be heard by three district judges

(unless the parties stipulate for a lesser number), with a right of

appeal to the circuit court of appeals. The TVA is a regional

agency. It is faced with the necessity of acquiring a very

substantial acreage within a relatively small area, and charged

with the task of carrying on within the Tennessee Valley and in

cooperation with the local people a permanent program involving

navigation and flood control, electric power, soil conservation,

and general regional development. The success of this program is

partially dependent upon the good will and cooperation of the

people of the Tennessee Valley, and this in turn partially depends

upon the land acquisition program. Disproportionate awards among

landowners would create dissatisfaction and ill will. To secure

uniformity in treatment Congress provided the rather unique

procedure of the three-judge court to review de novo the initial

award of the commissioners. This procedure has worked to the

satisfaction of the property owners and the TVA. A full statement

of the TVA position and experience is set forth in Preliminary

Draft of Proposed Rule to Govern Condemnation Cases (June, 1947)

15-19. A large majority of the district judges with experience

under this procedure approve it, subject to some objection to the

requirement for a three-judge district court to review

commissioners' awards. A statutory three-judge requirement is,

however, jurisdictional and must be strictly followed. Stratton v.

St. Louis, Southwestern Ry. Co., 1930, 51 S.Ct. 8, 282 U.S. 10, 75

L.Ed. 135; Ayrshire Collieries Corp. v. United States, 1947, 67

S.Ct. 1168, 331 U.S. 132, 91 L.Ed. 1391. Hence except insofar as

the TVA statute itself authorizes the parties to stipulate for a

court of less than three judges, the requirement must be followed,

and would seem to be beyond alteration by court rule even if change

were thought desirable. Accordingly the TVA procedure is retained

for the determination of compensation in TVA condemnation cases. It

was also thought desirable to retain the specific method Congress

had prescribed for the District of Columbia, which is a so-called

jury of five appointed by the court. This is a local matter and the

specific treatment accorded by Congress has given local

satisfaction.

Aside from the foregoing limited exceptions dealing with the TVA

and the District of Columbia, the question was whether a uniform

method for determining compensation should be a commission with

appeal to a district judge, or a commission with appeal to a jury,

or a jury without a commission. Experience with the commission on a

nationwide basis, and in particular with the utilization of a

commission followed by an appeal to a jury, has been that the

commission is time consuming and expensive. Furthermore, it is

largely a futile procedure where it is preparatory to jury trial.

Since in the bulk of states a land owner is entitled eventually to

a jury trial, since the jury is a traditional tribunal for the

determination of questions of value, and since experience with

juries has proved satisfactory to both government and land owner,

the right to jury trial is adopted as the general rule.

Condemnation involving the TVA and the District of Columbia are the

two exceptions. See Note to Subdivision (h), infra.

Note to Subdivision (a). As originally promulgated the Federal

Rules governed appeals in condemnation proceedings but were not

otherwise applicable. Rule 81(a)(7). Pre-appeal procedure, in the

main, conformed to state procedure. See statutes and discussion,

supra. The purpose of Rule 71A is to provide a uniform procedure

for condemnation in the federal district courts, including the

District of Columbia. To achieve this purpose Rule 71A prescribes

such specialized procedure as is required by condemnation

proceedings, otherwise it utilizes the general framework of the

Federal Rules where specific detail is unnecessary. The adoption of

Rule 71A, of course, renders paragraph (7) of Rule 81(a)

unnecessary.

The promulgation of a rule for condemnation procedure is within

the rule-making power. The Enabling Act [Act of June 19, 1934, c.

651, Secs. 1, 2 (48 Stat. 1064), 28 U.S.C. Secs. 723b, 723c [see

2072]] gives the Supreme Court "the power to prescribe, by general

rules * * * the forms of process, writs, pleadings, and motions,

and the practice and procedure in civil actions at law." Such

rules, however, must not abridge, enlarge, or modify substantive

rights. In Kohl v. United States, 1875, 91 U.S. 367, 23 L.Ed. 449,

a proceeding instituted by the United States to appropriate land

for a post-office site under a statute enacted for such purpose,

the Supreme Court held that "a proceeding to take land in virtue of

the government's eminent domain, and determining the compensation

to be made for it, is * * * a suit at common law, when initiated in

a court." See also Madisonville Traction Co. v. Saint Bernard

Mining Co., 1905, 25 S.Ct. 251, 196 U.S. 239, 23 L.Ed. 449, infra,

under subdivision (k). And the Conformity Act, [former] 40 U.S.C.

Sec. 258, which is superseded by Rule 71A, deals only with

"practice, pleadings, forms and proceedings and not with matters of

substantive laws." United States v. 243.22 Acres of Land in Village

of Farmingdale, Town of Babylon, Suffolk County, N.Y., D.C.N.Y.

1942, 43 F.Supp. 561, affirmed 129 F.2d 678, certiorari denied, 63

S.Ct. 441, 317 U.S. 698, 87 L.Ed. 558.

Rule 71A affords a uniform procedure for all cases of

condemnation invoking the national power of eminent domain, and, to

the extent stated in subdivision (k), for cases invoking a state's

power of eminent domain; and supplants all statutes prescribing a

different procedure. While the almost exclusive utility of the rule

is for the condemnation of real property, it also applies to the

condemnation of personal property, either as an incident to real

property or as the sole object of the proceeding, when permitted or

required by statute. See 38 U.S.C. [former] Sec. 438j (World War

Veterans' Relief Act); 42 U.S.C. Secs. 1805, 1811, 1813 (Atomic

Energy Act); 50 U.S.C. Sec. 79 (Nitrates Act); 50 U.S.C. Secs.

161-166 (Helium Gas Act). Requisitioning of personal property with

the right in the owner to sue the United States, where the

compensation cannot be agreed upon (see 42 U.S.C. Sec. 1813, supra,

for example) will continue to be the normal method of acquiring

personal property and Rule 71A in no way interferes with or

restricts any such right. Only where the law requires or permits

the formal procedure of condemnation to be utilized will the rule

have any applicability to the acquisition of personal property.

Rule 71A is not intended to and does not supersede the Act of

February 26, 1931, ch. 307, Secs. 1-5 (46 Stat. 1421), 40 U.S.C.

Secs. 258a-258e [now 40 U.S.C. 3114, 3115, 3118], which is a

supplementary condemnation statute, permissive in its nature and

designed to permit the prompt acquisition of title by the United

States, pending the condemnation proceeding, upon a deposit in

court. See United States v. 76,800 Acres, More or Less, of Land, in

Bryan and Liberty Counties, Ga., D.C.Ga. 1942, 44 F.Supp. 653;

United States v. 17,280 Acres of Land, More or Less, Situated in

Saunders County, Nebr., D.C.Neb. 1942, 47 F.Supp. 267. The same is

true insofar as the following or any other statutes authorize the

acquisition of title or the taking of immediate possession:

U.S.C., Title 33:

Sec. 594 (When immediate possession of land may be taken; for a

work of river and harbor improvements).

U.S.C., Title 42:

Sec. 1813(b) (When immediate possession may be taken under

Atomic Energy Act).

U.S.C., Title 50:

Sec. 171 (Acquisition of land by the Secretary of the Army for

national defense).

Sec. 632 App. (Second War Powers Act, 1942; acquisition of real

property for war purposes by the Secretary of the Army, the

Secretary of the Navy, and others).

Note to Subdivision (b). This subdivision provides for broad

joinder in accordance with the tenor of other rules such as Rule

18. To require separate condemnation proceedings for each piece of

property separately owned would be unduly burdensome and would

serve no useful purpose. And a restriction that only properties may

be joined which are to be acquired for the same public use would

also cause difficulty. For example, a unified project to widen a

street, construct a bridge across a navigable river, and for the

construction of approaches to the level of the bridge on both sides

of the river might involve acquiring property for different public

uses. Yet it is eminently desirable that the plaintiff may in one

proceeding condemn all the property interests and rights necessary

to carry out this project. Rule 21 which allows the court to sever

and proceed separately with any claim against a party, and Rule

42(b) giving the court broad discretion to order separate trials

give adequate protection to all defendants in condemnation

proceedings.

Note to Subdivision (c). Since a condemnation proceeding is in

rem and since a great many property owners are often involved,

paragraph (1) requires the property to be named and only one of the

owners. In other respects the caption will contain the name of the

court, the title of the action, file number, and a designation of

the pleading as a complaint in accordance with Rule 10(a).

Since the general standards of pleading are stated in other

rules, paragraph (2) prescribes only the necessary detail for

condemnation proceedings. Certain statutes allow the United States

to acquire title or possession immediately upon commencement of an

action. See the Act of February 26, 1931, ch. 307 Secs. 1-5 (46

Stat. 1421), 40 U.S.C. Secs. 258a-258e [now 40 U.S.C. 3114, 3115,

3118], supra; and 33 U.S.C. Sec. 594, 42 U.S.C. Sec. 1813(b), 50

U.S.C. Secs. 171, 632, supra. To carry out the purpose of such

statutes and to aid the condemnor in instituting the action even

where title is not acquired at the outset, the plaintiff is

initially required to join as defendants only the persons having or

claiming an interest in the property whose names are then known.

This in no way prejudices the property owner, who must eventually

be joined as a defendant, served with process, and allowed to

answer before there can be any hearing involving the compensation

to be paid for his piece of property. The rule requires the

plaintiff to name all persons having or claiming an interest in the

property of whom the plaintiff has learned and, more importantly,

those appearing of record. By charging the plaintiff with the

necessity to make "a search of the records of the extent commonly

made by competent searchers of title in the vicinity in light of

the type and value of the property involved" both the plaintiff and

property owner are protected. Where a short term interest in

property of little value is involved, as a two or three year

easement over a vacant land for purposes of ingress and egress to

other property, a search of the records covering a long period of

time is not required. Where on the other hand fee simple title in

valuable property is being condemned the search must necessarily

cover a much longer period of time and be commensurate with the

interests involved. But even here the search is related to the type

made by competent title searchers in the vicinity. A search that

extends back to the original patent may be feasible in some

midwestern and western states and be proper under certain

circumstances. In the Atlantic seaboard states such a search is

normally not feasible nor desirable. There is a common sense

business accommodation of what title searchers can and should do.

For state statutes requiring persons appearing as owners or

otherwise interested in the property to be named as defendants, see

3 Colo. Stat. Ann., 1935, c. 61, Sec. 2; Ill. Ann. Stat.

(Smith-Hurd) c. 47, Sec. 2; 1 Iowa Code, 1946, Sec. 472.3; Kans.

Stat. Ann., 1935, Sec. 26-101; 2 Mass. Laws Ann., 1932, ch. 80A,

Sec. 4; 7 Mich. Stat. Ann., 1936, Sec. 8.2; 2 Minn. Stat., Mason,

1927, Sec. 6541; 20 N.J. Stat. Ann., 1939, Sec. 1-2; 3 Wash.

Revised Stat., Remington, 1932, Title 6, Sec. 891. For state

provisions allowing persons whose names are not known to be

designated under the descriptive term of "unknown owner", see

Hawaii Revised Laws, 1945, c. 8, Sec. 310 ("such [unknown]

defendant may be joined in the petition under a fictitious name.";

Ill. Ann. Stat., Smith-Hurd), c. 47, Sec. 2 ("Persons interested,

whose names are unknown, may be made parties defendant by the

description of the unknown owners; . . ."); Maryland Code Ann.,

1939, Ar. 33A, Sec. 1 ("In case any owner or owners is or are not

known, he or they may be described in such petition as the unknown

owner or owners, or the unknown heir or heirs of a deceased

owner."); 2 Mass. Laws Ann., 1932, c. 80A, Sec. 4 ("Persons not in

being, unascertained or unknown who may have an interest in any of

such land shall be made parties respondent by such description as

seems appropriate, * * *"); New Mex. Stat. Ann., 1941, Sec. 25-901

("the owners * * * shall be parties defendant, by name, if the

names are known, and by description of the unknown owners of the

land therein described, if their names are unknown."); Utah Code

Ann., 1943, Sec. 104-61-7 ("The names of all owners and claimants

of the property, if known, or a statement that they are unknown,

who must be styled defendants").

The last sentence of paragraph (2) enables the court to expedite

the distribution of a deposit, in whole or in part, as soon as

pertinent facts of ownership, value and the like are established.

See also subdivision (j).

The signing of the complaint is governed by Rule 11.

Note to Subdivision (d). In lieu of a summons, which is the

initial process in other civil actions under Rule 4 (a),

subdivision (d) provides for a notice which is to contain

sufficient information so that the defendant in effect obtains the

plaintiff's statement of his claim against the defendant to whom

the notice is directed. Since the plaintiff's attorney is an

officer of the court and to prevent unduly burdening the clerk of

the court, paragraph (1) of subdivision (d) provides that

plaintiff's attorney shall prepare and deliver a notice or notices

to the clerk. Flexibility is provided by the provision for joint or

several notices, and for additional notices. Where there are only a

few defendants it may be convenient to prepare but one notice

directed to all the defendants. In other cases where there are many

defendants it will be more convenient to prepare two or more

notices; but in any event a notice must be directed to each named

defendant. Paragraph (2) provides that the notice is to be signed

by the plaintiff's attorney. Since the notice is to be delivered to

the clerk, the issuance of the notice will appear of record in the

court. The clerk should forthwith deliver the notice or notices for

service to the marshal or to a person specially appointed to serve

the notice. Rule 4 (a). The form of the notice is such that, in

addition to informing the defendant of the plaintiff's statement of

claim, it tells the defendant precisely what his rights are.

Failure on the part of the defendant to serve an answer constitutes

a consent to the taking and to the authority of the court to

proceed to fix compensation therefor, but it does not preclude the

defendant from presenting evidence as to the amount of compensation

due him or in sharing the award of distribution. See subdivision

(e); Form 28.

While under Rule 4(f) the territorial limits of a summons are

normally the territorial limits of the state in which the district

court is held, the territorial limits for personal service of a

notice under Rule 71A (d)(3) are those of the nation. This

extension of process is here proper since the aim of the

condemnation proceeding is not to enforce any personal liability

and the property owner is helped, not imposed upon, by the best

type of service possible. If personal service cannot be made either

because the defendant's whereabouts cannot be ascertained, or, if

ascertained, the defendant cannot be personally served, as where he

resides in a foreign country such as Canada or Mexico, then service

by publication is proper. The provisions for this type of service

are set forth in the rule and are in no way governed by 28 U.S.C.

Sec. 118.

Note to Subdivision (e). Departing from the scheme of Rule 12,

subdivision (e) requires all defenses and objections to be

presented in an answer and does not authorize a preliminary motion.

There is little need for the latter in condemnation proceedings.

The general standard of pleading is governed by other rules,

particularly Rule 8, and this subdivision (e) merely prescribes

what matters the answer should set forth. Merely by appearing in

the action a defendant can receive notice of all proceedings

affecting him. And without the necessity of answering a defendant

may present evidence as to the amount of compensation due him, and

he may share in the distribution of the award. See also subdivision

(d)(2); Form 28.

Note to Subdivision (f). Due to the number of persons who may be

interested in the property to be condemned, there is a likelihood

that the plaintiff will need to amend his complaint, perhaps many

times, to add new parties or state new issues. This subdivision

recognizes that fact and does not burden the court with

applications by the plaintiff for leave to amend. At the same time

all defendants are adequately protected; and their need to amend

the answer is adequately protected by Rule 15, which is applicable

by virtue of subdivision (a) of this Rule 71A.

Note to Subdivision (g). A condemnation action is a proceeding in

rem. Commencement of the action as against a defendant by virtue of

his joinder pursuant to subdivision (c)(2) is the point of cut-off

and there is no mandatory requirement for substitution because of a

subsequent change of interest, although the court is given ample

power to require substitution. Rule 25 is inconsistent with

subdivision (g) and hence inapplicable. Accordingly, the time

periods of Rule 25 do not govern to require dismissal nor to

prevent substitution.

Note to Subdivision (h). This subdivision prescribes the method

for determining the issue of just compensation in cases involving

the federal power of eminent domain. The method of jury trial

provided by subdivision (h) will normally apply in cases involving

the state power by virtue of subdivision (k).

Congress has specially constituted a tribunal for the trial of

the issue of just compensation in two instances: condemnation under

the Tennessee Valley Authority Act; and condemnation in the

District of Columbia. These tribunals are retained for reasons set

forth in the General Statement: 3. Adjustment of Rule to Statutory

Provisions, supra. Subdivision (h) also has prospective application

so that if Congress should create another special tribunal, that

tribunal will determine the issue of just compensation. Subject to

these exceptions the general method of trial of that issue is to be

by jury if any party demands it, otherwise that issue, as well as

all other issues, are to be tried by the court.

As to the TVA procedure that is continued, U.S.C., Title 16, Sec.

831x requires that three commissioners be appointed to fix the

compensation; that exceptions to their award are to be heard by

three district judges (unless the parties stipulate for a lesser

number) and that the district judges try the question de novo; that

an appeal to the circuit court of appeals may be taken within 30

days from the filing of the decision of the district judges; and

that the circuit court of appeals shall on the record fix

compensation "without regard to the awards of findings theretofore

made by the commissioners or the district judges." The mode of

fixing compensation in the District of Columbia, which is also

continued, is prescribed in U.S.C., [former] Title 40, Secs.

361-386. Under Sec. 371 the court is required in all cases to order

the selection of a jury of five from among not less than 20 names,

drawn "from the special box provided by law." They must have the

usual qualifications of jurors and in addition must be freeholders

of the District, and not in the service of the United States or the

District. A special oath is administered to the chosen jurors. The

trial proceeds in the ordinary way, except that the jury is allowed

to separate after they have begun to consider their verdict.

There is no constitutional right to jury trial in a condemnation

proceeding. Bauman v. Ross, 1897, 17 S.Ct. 966, 167 U.S. 548, 42

L.Ed. 270. See, also, Hines, Does the Seventh Amendment to the

Constitution of the United States Require Jury Trials in all

Condemnation Proceedings? 1925, 11 Va.L.Rev. 505; Blair, Federal

Condemnation Proceedings and the Seventh Amendment 1927, 41

Harv.L.Rev. 29; 3 Moore's Federal Practice 1938, 3007. Prior to

Rule 71A, jury trial in federal condemnation proceedings was,

however, enjoyed under the general conformity statute, [former] 40

U.S.C. Sec. 258, in states which provided for jury trial. See

generally, 2 Lewis, Eminent Domain 3d ed. 1909, Secs. 509, 510; 3

Moore, op. cit. supra. Since the general conformity statute is

superseded by Rule 71A, see supra under subdivision (a), and since

it was believed that the rule to be substituted should likewise

give a right to jury trial, subdivision (h) establishes that method

as the general one for determining the issue of just compensation.

Note to Subdivision (i). Both the right of the plaintiff to

dismiss by filing a notice of dismissal and the right of the court

to permit a dismissal are circumscribed to the extent that where

the plaintiff has acquired the title or a lesser interest or

possession, viz, any property interest for which just compensation

should be paid, the action may not be dismissed, without the

defendant's consent, and the property owner remitted to another

court, such as the Court of Claims, to recover just compensation

for the property right taken. Circuity of action is thus prevented

without increasing the liability of the plaintiff to pay just

compensation for any interest that is taken. Freedom of dismissal

is accorded, where both the condemnor and condemnee agree, up to

the time of the entry of judgment vesting plaintiff with title. And

power is given to the court, where the parties agree, to vacate the

judgment and thus revest title in the property owner. In line with

Rule 21, the court may at any time drop a defendant who has been

unnecessarily or improperly joined as where it develops that he has

no interest.

Note to Subdivision (j). Whatever the substantive law is

concerning the necessity of making a deposit will continue to

govern. For statutory provisions concerning deposit in court in

condemnation proceedings by the United States, see U.S.C., Title

40, Sec. 258a [now 40 U.S.C. 3114(a)-(d)]; U.S.C., Title 33, Sec.

594 - acquisition of title and possession statutes referred to in

note to subdivision (a), supra. If the plaintiff is invoking the

state's power of eminent domain the necessity of deposit will be

governed by the state law. For discussion of such law, see 1

Nichols, Eminent Domain, 2d ed. 1917, Secs. 209-216. For discussion

of the function of deposit and the power of the court to enter

judgment in cases both of deficiency and overpayment, see United

States v. Miller, 1943, 63 S.Ct. 276, 317 U.S. 369, 87 L.Ed. 336,

147 A.L.R. 55, rehearing denied, 63 S.Ct. 557, 318 U.S. 798, 87

L.Ed. 1162 (judgment in favor of plaintiff for overpayment

ordered).

The court is to make distribution of the deposit as promptly as

the facts of the case warrant. See also subdivision (c)(2).

Note to Subdivision (k). While the overwhelming number of cases

that will be brought in the federal courts under this rule will be

actions involving the federal power of eminent domain, a small

percentage of cases may be instituted in the federal court or

removed thereto on the basis of diversity or alienage which will

involve the power of eminent domain under the law of a state. See

Boom Co. v. Patterson, 1878, 98 U.S. 403, 25 L.Ed. 206; Searl v.

School District No. 2, 1888, 8 S.Ct. 460, 124 U.S. 197, 31 L.Ed.

415; Madisonville Traction Co. v. Saint Bernard Mining Co., 1905,

25 S.Ct. 251, 196 U.S. 239, 49 L.Ed. 462. In the Madisonville case,

and in cases cited therein, it has been held that condemnation

actions brought by state corporations in the exercise of a power

delegated by the state might be governed by procedure prescribed by

the laws of the United States, whether the cases were begun in or

removed to the federal court. See also Franzen v. Chicago, M. & St.

P. Ry. Co., C.C.A.7th, 1921, 278 F. 370, 372.

Any condition affecting the substantial right of a litigant

attached by state law is to be observed and enforced, such as

making a deposit in court where the power of eminent domain is

conditioned upon so doing. (See also subdivision (j)). Subject to

this qualification, subdivision (k) provides that in cases

involving the state power of eminent domain, the practice

prescribed by other subdivisions of Rule 71A shall govern.

Note to Subdivision (l). Since the condemnor will normally be the

prevailing party and since he should not recover his costs against

the property owner, Rule 54(d), which provides generally that costs

shall go to the prevailing party, is made inapplicable. Without

attempting to state what the rule on costs is, the effect of

subdivision (1) is that costs shall be awarded in accordance with

the law that has developed in condemnation cases. This has been

summarized as follows: "Costs of condemnation proceedings are not

assessable against the condemnee, unless by stipulation he agrees

to assume some or all of them. Such normal expenses of the

proceeding as bills for publication of notice, commissioners' fees,

the cost of transporting commissioners and jurors to take a view,

fees for attorneys to represent defendants who have failed to

answer, and witness' fees, are properly charged to the government,

though not taxed as costs. Similarly, if it is necessary that a

conveyance be executed by a commissioner, the United States pay his

fees and those for recording the deed. However, the distribution of

the award is a matter in which the United States has no legal

interest. Expenses incurred in ascertaining the identity of

distributees and deciding between conflicting claimants are

properly chargeable against the award, not against the United

States, although United States attorneys are expected to aid the

court in such matters as amici curiae." Lands Division Manual 861.

For other discussion and citation, see Grand River Dam Authority v.

Jarvis, C.C.A.10th, 1942, 124 F.2d 914. Costs may not be taxed

against the United States except to the extent permitted by law.

United States v. 125.71 Acres of Land in Loyalhanna Tp.,

Westmoreland County, Pa., D.C.Pa. 1944, 54 F.Supp. 193; Lands

Division Manual 859. Even if it were thought desirable to allow the

property owner's costs to be taxed against the United States, this

is a matter for legislation and not court rule.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This amendment conforms to the amendment of Rule 4(f).

NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT

Rule 71A(h) provides that except when Congress has provided

otherwise, the issue of just compensation in a condemnation case

may be tried by a jury if one of the parties so demands, unless the

court in its discretion orders the issue determined by a commission

of three persons. In 1980, the Comptroller General of the United

States in a Report to Congress recommended that use of the

commission procedure should be encouraged in order to improve and

expedite the trial of condemnation cases. The Report noted that

long delays were being caused in many districts by such factors as

crowded dockets, the precedence given criminal cases, the low

priority accorded condemnation matters, and the high turnover of

Assistant United States Attorneys. The Report concluded that

revising Rule 71A to make the use of the commission procedure more

attractive might alleviate the situation.

Accordingly, Rule 71A(h) is being amended in a number of respects

designed to assure the quality and utility of a Rule 71A

commission. First, the amended Rule will give the court discretion

to appoint, in addition to the three members of a commission, up to

two additional persons as alternate commissioners who would hear

the case and be available, at any time up to the filing of the

decision by the three-member commission, to replace any

commissioner who becomes unable or disqualified to continue. The

discretion to appoint alternate commissioners can be particularly

useful in protracted cases, avoiding expensive retrials that have

been required in some cases because of the death or disability of a

commissioner. Prior to replacing a commissioner an alternate would

not be present at, or participate in, the commission's

deliberations.

Second, the amended Rule requires the court, before appointment,

to advise the parties of the identity and qualifications of each

prospective commissioner and alternate. The court then may

authorize the examination of prospective appointees by the parties

and each party has the right to challenge for cause. The objective

is to insure that unbiased and competent commissioners are

appointed.

The amended Rule does not prescribe a qualification standard for

appointment to a commission, although it is understood that only

persons possessing background and ability to appraise real estate

valuation testimony and to award fair and just compensation on the

basis thereof would be appointed. In most situations the

chairperson should be a lawyer and all members should have some

background qualifying them to weigh proof of value in the real

estate field and, when possible, in the particular real estate

market embracing the land in question.

The amended Rule should give litigants greater confidence in the

commission procedure by affording them certain rights to

participate in the appointment of commission members that are

roughly comparable to the practice with regard to jury selection.

This is accomplished by giving the court permission to allow the

parties to examine prospective commissioners and by recognizing the

right of each party to object to the appointment of any person for

cause.

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.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

The references to the subdivisions of Rule 4 are deleted in light

of the revision of that rule.

AMENDMENT BY PUBLIC LAW

1988 - Subd. (e). Pub. L. 100-690, which directed amendment of

subd. (e) by striking "taking of the defendants property" and

inserting "taking of the defendant's property", 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 72 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IX. SPECIAL PROCEEDINGS

-HEAD-

Rule 72. Magistrate Judges; Pretrial Orders

-STATUTE-

(a) Nondispositive Matters. A magistrate judge to whom a pretrial

matter not dispositive of a claim or defense of a party is referred

to hear and determine shall promptly conduct such proceedings as

are required and when appropriate enter into the record a written

order setting forth the disposition of the matter. Within 10 days

after being served with a copy of the magistrate judge's order, a

party may serve and file objections to the order; a party may not

thereafter assign as error a defect in the magistrate judge's order

to which objection was not timely made. The district judge to whom

the case is assigned shall consider such objections and shall

modify or set aside any portion of the magistrate judge's order

found to be clearly erroneous or contrary to law.

(b) Dispositive Motions and Prisoner Petitions. A magistrate

judge assigned without consent of the parties to hear a pretrial

matter dispositive of a claim or defense of a party or a prisoner

petition challenging the conditions of confinement shall promptly

conduct such proceedings as are required. A record shall be made of

all evidentiary proceedings before the magistrate judge, and a

record may be made of such other proceedings as the magistrate

judge deems necessary. The magistrate judge shall enter into the

record a recommendation for disposition of the matter, including

proposed findings of fact when appropriate. The clerk shall

forthwith mail copies to all parties.

A party objecting to the recommended disposition of the matter

shall promptly arrange for the transcription of the record, or

portions of it as all parties may agree upon or the magistrate

judge deems sufficient, unless the district judge otherwise

directs. Within 10 days after being served with a copy of the

recommended disposition, a party may serve and file specific,

written objections to the proposed findings and recommendations. A

party may respond to another party's objections within 10 days

after being served with a copy thereof. The district judge to whom

the case is assigned shall make a de novo determination upon the

record, or after additional evidence, of any portion of the

magistrate judge's disposition to which specific written objection

has been made in accordance with this rule. The district judge may

accept, reject, or modify the recommended decision, receive further

evidence, or recommit the matter to the magistrate judge with

instructions.

-SOURCE-

(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Apr. 30, 1991,

eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1983

Subdivision (a). This subdivision addresses court-ordered

referrals of nondispositive matters under 28 U.S.C. Sec.

636(b)(1)(A). The rule calls for a written order of the

magistrate's disposition to preserve the record and facilitate

review. An oral order read into the record by the magistrate will

satisfy this requirement.

No specific procedures or timetables for raising objections to

the magistrate's rulings on nondispositive matters are set forth in

the Magistrates Act. The rule fixes a 10-day period in order to

avoid uncertainty and provide uniformity that will eliminate the

confusion that might arise if different periods were prescribed by

local rule in different districts. It also is contemplated that a

party who is successful before the magistrate will be afforded an

opportunity to respond to objections raised to the magistrate's

ruling.

The last sentence of subdivision (a) specifies that

reconsideration of a magistrate's order, as provided for in the

Magistrates Act, shall be by the district judge to whom the case is

assigned. This rule does not restrict experimentation by the

district courts under 28 U.S.C. Sec. 636(b)(3) involving references

of matters other than pretrial matters, such as appointment of

counsel, taking of default judgments, and acceptance of jury

verdicts when the judge is unavailable.

Subdivision (b). This subdivision governs court-ordered referrals

of dispositive pretrial matters and prisoner petitions challenging

conditions of confinement, pursuant to statutory authorization in

28 U.S.C. Sec. 636(b)(1)(B). This rule does not extend to habeas

corpus petitions, which are covered by the specific rules relating

to proceedings under Sections 2254 and 2255 of Title 28.

This rule implements the statutory procedures for making

objections to the magistrate's proposed findings and

recommendations. The 10-day period, as specified in the statute, is

subject to Rule 6(e) which provides for an additional 3-day period

when service is made by mail. Although no specific provision

appears in the Magistrates Act, the rule specifies a 10-day period

for a party to respond to objections to the magistrate's

recommendation.

Implementing the statutory requirements, the rule requires the

district judge to whom the case is assigned to make a de novo

determination of those portions of the report, findings, or

recommendations to which timely objection is made. The term "de

novo" signifies that the magistrate's findings are not protected by

the clearly erroneous doctrine, but does not indicate that a second

evidentiary hearing is required. See United States v. Raddatz, 417

U.S. 667 (1980). See also Silberman, Masters and Magistrates Part

II: The American Analogue, 50 N.Y.U. L.Rev. 1297, 1367 (1975). When

no timely objection is filed, the court need only satisfy itself

that there is no clear error on the face of the record in order to

accept the recommendation. See Campbell v. United States Dist.

Court, 501 F.2d 196, 206 (9th Cir. 1974), cert. denied, 419 U.S.

879, quoted in House Report No. 94-1609, 94th Cong. 2d Sess. (1976)

at 3. Compare Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603

(1st Cir. 1980). Failure to make timely objection to the

magistrate's report prior to its adoption by the district judge may

constitute a waiver of appellate review of the district judge's

order. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

This amendment is intended to eliminate a discrepancy in

measuring the 10 days for serving and filing objections to a

magistrate's action under subdivisions (a) and (b) of this Rule.

The rule as promulgated in 1983 required objections to the

magistrate's handling of nondispositive matters to be served and

filed within 10 days of entry of the order, but required objections

to dispositive motions to be made within 10 days of being served

with a copy of the recommended disposition. Subdivision (a) is here

amended to conform to subdivision (b) to avoid any confusion or

technical defaults, particularly in connection with magistrate

orders that rule on both dispositive and nondispositive matters.

The amendment is also intended to assure that objections to

magistrate's orders that are not timely made shall not be

considered. Compare Rule 51.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

This revision is made to conform the rule to changes made by the

Judicial Improvements Act of 1990.

-End-

-CITE-

28 USC APPENDIX Rule 73 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IX. SPECIAL PROCEEDINGS

-HEAD-

Rule 73. Magistrate Judges; Trial by Consent and Appeal

-STATUTE-

(a) Powers; Procedure. When specially designated to exercise such

jurisdiction by local rule or order of the district court and when

all parties consent thereto, a magistrate judge may exercise the

authority provided by Title 28, U.S.C. Sec. 636(c) and may conduct

any or all proceedings, including a jury or nonjury trial, in a

civil case. A record of the proceedings shall be made in accordance

with the requirements of Title 28, U.S.C. Sec. 636(c)(5).

(b) Consent. When a magistrate judge has been designated to

exercise civil trial jurisdiction, the clerk shall give written

notice to the parties of their opportunity to consent to the

exercise by a magistrate judge of civil jurisdiction over the case,

as authorized by Title 28, U.S.C. Sec. 636(c). If, within the

period specified by local rule, the parties agree to a magistrate

judge's exercise of such authority, they shall execute and file a

joint form of consent or separate forms of consent setting forth

such election.

A district judge, magistrate judge, or other court official may

again advise the parties of the availability of the magistrate

judge, but, in so doing, shall also advise the parties that they

are free to withhold consent without adverse substantive

consequences. A district judge or magistrate judge shall not be

informed of a party's response to the clerk's notification, unless

all parties have consented to the referral of the matter to a

magistrate judge.

The district judge, for good cause shown on the judge's own

initiative, or under extraordinary circumstances shown by a party,

may vacate a reference of a civil matter to a magistrate judge

under this subdivision.

(c) Appeal. In accordance with Title 28, U.S.C. Sec. 636(c)(3),

appeal from a judgment entered upon direction of a magistrate judge

in proceedings under this rule will lie to the court of appeals as

it would from a judgment of the district court.

[(d) Optional Appeal Route.] (Abrogated Apr. 11, 1997, eff. Dec.

1, 1997)

-SOURCE-

(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Mar. 2, 1987,

eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 11, 1997,

eff. Dec. 1, 1997.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1983

Subdivision (a). This subdivision implements the broad authority

of the 1979 amendments to the Magistrates Act, 28 U.S.C. Sec.

636(c), which permit a magistrate to sit in lieu of a district

judge and exercise civil jurisdiction over a case, when the parties

consent. See McCabe, The Federal Magistrate Act of 1979, 16 Harv.

J. Legis. 343, 364-79 (1979). In order to exercise this

jurisdiction, a magistrate must be specially designated under 28

U.S.C. Sec. 636(c)(1) by the district court or courts he serves.

The only exception to a magistrate's exercise of civil

jurisdiction, which includes the power to conduct jury and nonjury

trials and decide dispositive motions, is the contempt power. A

hearing on contempt is to be conducted by the district judge upon

certification of the facts and an order to show cause by the

magistrate. See 28 U.S.C. Sec. 639(e). In view of 28 U.S.C. Sec.

636(c)(1) and this rule, it is unnecessary to amend Rule 58 to

provide that the decision of a magistrate is a "decision by the

court" for the purposes of that rule and a "final decision of the

district court" for purposes of 28 U.S.C. Sec. 1291 governing

appeals.

Subdivision (b). This subdivision implements the blind consent

provision of 28 U.S.C. Sec. 636(c)(2) and is designed to ensure

that neither the judge nor the magistrate attempts to induce a

party to consent to reference of a civil matter under this rule to

a magistrate. See House Rep. No. 96-444, 96th Cong. 1st Sess. 8

(1979).

The rule opts for a uniform approach in implementing the consent

provision by directing the clerk to notify the parties of their

opportunity to elect to proceed before a magistrate and by

requiring the execution and filing of a consent form or forms

setting forth the election. However, flexibility at the local level

is preserved in that local rules will determine how notice shall be

communicated to the parties, and local rules will specify the time

period within which an election must be made.

The last paragraph of subdivision (b) reiterates the provision in

28 U.S.C. Sec. 636(c)(6) for vacating a reference to the

magistrate.

Subdivision (c). Under 28 U.S.C. Sec. 636(c)(3), the normal route

of appeal from the judgment of a magistrate - the only route that

will be available unless the parties otherwise agree in advance -

is an appeal by the aggrieved party "directly to the appropriate

United States court of appeals from the judgment of the magistrate

in the same manner as an appeal from any other judgment of a

district court." The quoted statutory language indicates Congress'

intent that the same procedures and standards of appealability that

govern appeals from district court judgments govern appeals from

magistrates' judgments.

Subdivision (d). 28 U.S.C. Sec. 636(c)(4) offers parties who

consent to the exercise of civil jurisdiction by a magistrate an

alternative appeal route to that provided in subdivision (c) of

this rule. This optional appellate route was provided by Congress

in recognition of the fact that not all civil cases warrant the

same appellate treatment. In cases where the amount in controversy

is not great and there are no difficult questions of law to be

resolved, the parties may desire to avoid the expense and delay of

appeal to the court of appeals by electing an appeal to the

district judge. See McCabe, The Federal Magistrate Act of 1979, 16

Harv. J. Legis. 343, 388 (1979). This subdivision provides that the

parties may elect the optional appeal route at the time of

reference to a magistrate. To this end, the notice by the clerk

under subdivision (b) of this rule shall explain the appeal option

and the corollary restriction on review by the court of appeals.

This approach will avoid later claims of lack of consent to the

avenue of appeal. The choice of the alternative appeal route to the

judge of the district court should be made by the parties in their

forms of consent. Special appellate rules to govern appeals from a

magistrate to a district judge appear in new Rules 74 through 76.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

This revision is made to conform the rule to changes made by the

Judicial Improvements Act of 1990. The Act requires that, when

being reminded of the availability of a magistrate judge, the

parties be advised that withholding of consent will have no

"adverse substantive consequences." They may, however, be advised

if the withholding of consent will have the adverse procedural

consequence of a potential delay in trial.

NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT

The Federal Courts Improvement Act of 1996 repealed the former

provisions of 28 U.S.C. Sec. 636(c)(4) and (5) that enabled parties

that had agreed to trial before a magistrate judge to agree also

that appeal should be taken to the district court. Rule 73 is

amended to conform to this change. Rules 74, 75, and 76 are

abrogated for the same reason. The portions of Form 33 and Form 34

that referred to appeals to the district court also are deleted.

-End-

-CITE-

28 USC APPENDIX Rule 74 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IX. SPECIAL PROCEEDINGS

-HEAD-

[Rule 74. Method of Appeal From Magistrate Judge to District Judge

Under Title 28, U.S.C. Sec. 636(c)(4) and Rule 73(d)] (Abrogated

Apr. 11, 1997, eff. Dec. 1, 1997)

-STATUTE-

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT

Rule 74 is abrogated for the reasons described in the Note to

Rule 73.

-End-

-CITE-

28 USC APPENDIX Rule 75 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IX. SPECIAL PROCEEDINGS

-HEAD-

[Rule 75. Proceedings on Appeal From Magistrate Judge to District

Judge Under Rule 73(d)] (Abrogated Apr. 11, 1997, eff. Dec. 1,

1997)

-STATUTE-

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT

Rule 75 is abrogated for the reasons described in the Note to

Rule 73.

-End-

-CITE-

28 USC APPENDIX Rule 76 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IX. SPECIAL PROCEEDINGS

-HEAD-

[Rule 76. Judgment of the District Judge on the Appeal Under Rule

73(d) and Costs] (Abrogated Apr. 11, 1997, eff. Dec. 1, 1997)

-STATUTE-

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT

Rule 76 is abrogated for the reasons described in the Note to

Rule 73.

-End-

-CITE-

28 USC APPENDIX X. DISTRICT COURTS AND CLERKS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

X. DISTRICT COURTS AND CLERKS

-HEAD-

X. DISTRICT COURTS AND CLERKS

-End-

-CITE-

28 USC APPENDIX Rule 77 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

X. DISTRICT COURTS AND CLERKS

-HEAD-

Rule 77. District Courts and Clerks

-STATUTE-

(a) District Courts Always Open. The district courts shall be

deemed always open for the purpose of filing any pleading or other

proper paper, of issuing and returning mesne and final process, and

of making and directing all interlocutory motions, orders, and

rules.

(b) Trials and Hearings; Orders in Chambers. All trials upon the

merits shall be conducted in open court and so far as convenient in

a regular court room. All other acts or proceedings may be done or

conducted by a judge in chambers, without the attendance of the

clerk or other court officials and at any place either within or

without the district; but no hearing, other than one ex parte,

shall be conducted outside the district without the consent of all

parties affected thereby.

(c) Clerk's Office and Orders by Clerk. The clerk's office with

the clerk or a deputy in attendance shall be open during business

hours on all days except Saturdays, Sundays, and legal holidays,

but a district court may provide by local rule or order that its

clerk's office shall be open for specified hours on Saturdays or

particular legal holidays other than New Year's Day, Birthday of

Martin Luther King, Jr., Washington's Birthday, Memorial Day,

Independence Day, Labor Day, Columbus Day, Veterans Day,

Thanksgiving Day, and Christmas Day. All motions and applications

in the clerk's office for issuing mesne process, for issuing final

process to enforce and execute judgments, for entering defaults or

judgments by default, and for other proceedings which do not

require allowance or order of the court are grantable of course by

the clerk; but the clerk's action may be suspended or altered or

rescinded by the court upon cause shown.

(d) Notice of Orders or Judgments. Immediately upon the entry of

an order or judgment the clerk shall serve a notice of the entry in

the manner provided for in Rule 5(b) upon each party who is not in

default for failure to appear, and shall make a note in the docket

of the service. Any party may in addition serve a notice of such

entry in the manner provided in Rule 5(b) for the service of

papers. Lack of notice of the entry by the clerk does not affect

the time to appeal or relieve or authorize the court to relieve a

party for failure to appeal within the time allowed, except as

permitted in Rule 4(a) of the Federal Rules of Appellate Procedure.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.

July 1, 1963; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff.

July 1, 1971; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff.

Dec. 1, 1991; Apr. 23, 2001, eff. Dec. 1, 2001.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

This rule states the substance of U.S.C., Title 28, Sec. 13 [now

452] (Courts open as courts of admiralty and equity). Compare

[former] Equity Rules 1 (District Court Always Open For Certain

Purposes - Orders at Chambers), 2 (Clerk's Office Always Open,

Except, Etc.), 4 (Notice of Orders), and 5 (Motions Grantable of

Course by Clerk).

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Rule 77(d) has been amended to avoid such situations as the one

arising in Hill v. Hawes (1944) 320 U.S. 520. In that case, an

action instituted in the District Court for the District of

Columbia, the clerk failed to give notice of the entry of a

judgment for defendant as required by Rule 77(d). The time for

taking an appeal then was 20 days under Rule 10 of the Court of

Appeals (later enlarged by amendment to thirty days), and due to

lack of notice of the entry of judgment the plaintiff failed to

file his notice of appeal within the prescribed time. On this basis

the trial court vacated the original judgment and then reentered

it, whereupon notice of appeal was filed. The Court of Appeals

dismissed the appeal as taken too late. The Supreme Court, however,

held that although Rule 77(d) did not purport to attach any

consequence to the clerk's failure to give notice as specified, the

terms of the rule were such that the appellant was entitled to rely

on it, and the trial court in such a case, in the exercise of a

sound discretion, could vacate the former judgment and enter a new

one, so that the appeal would be within the allowed time.

Because of Rule 6(c), which abolished the old rule that the

expiration of the term ends a court's power over its judgment, the

effect of the decision in Hill v. Hawes is to give the district

court power, in its discretion and without time limit, and long

after the term may have expired, to vacate a judgment and reenter

it for the purpose of reviving the right of appeal. This seriously

affects the finality of judgments. See also proposed Rule 6(c) and

Note; proposed Rule 60(b) and Note; and proposed Rule 73(a) and

Note.

Rule 77(d) as amended makes it clear that notification by the

clerk of the entry of a judgment has nothing to do with the

starting of the time for appeal; that time starts to run from the

date of entry of judgment and not from the date of notice of the

entry. Notification by the clerk is merely for the convenience of

litigants. And lack of such notification in itself has no effect

upon the time for appeal; but in considering an application for

extension of time for appeal as provided in Rule 73(a), the court

may take into account, as one of the factors affecting its

decision, whether the clerk failed to give notice as provided in

Rule 77(d) or the party failed to receive the clerk's notice. It

need not, however, extend the time for appeal merely because the

clerk's notice was not sent or received. It would, therefore, be

entirely unsafe for a party to rely on absence of notice from the

clerk of the entry of a judgment, or to rely on the adverse party's

failure to serve notice of the entry of a judgment. Any party may,

of course, serve timely notice of the entry of a judgment upon the

adverse party and thus preclude a successful application, under

Rule 73(a), for the extension of the time for appeal.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

Subdivision (c). The amendment authorizes closing of the clerk's

office on Saturday as far as civil business is concerned. However,

a district court may require its clerk's office to remain open for

specified hours on Saturdays or "legal holidays" other than those

enumerated. ("Legal holiday" is defined in Rule 6(a), as amended.)

The clerk's offices of many district courts have customarily

remained open on some of the days appointed as holidays by State

law. This practice could be continued by local rule or order.

Subdivision (d). This amendment conforms to the amendment of Rule

5(a). See the Advisory Committee's Note to that amendment.

NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT

The provisions of Rule 73(a) are incorporated in Rule 4(a) of the

Federal Rules of Appellate Procedure.

NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT

The amendment adds Columbus Day to the list of legal holidays.

See the Note accompanying the amendment of Rule 6(a).

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

The Birthday of Martin Luther King, Jr. is added to the list of

national holidays in Rule 77.

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

This revision is a companion to the concurrent amendment to Rule

4 of the Federal Rules of Appellate Procedure. The purpose of the

revisions is to permit district courts to ease strict sanctions now

imposed on appellants whose notices of appeal are filed late

because of their failure to receive notice of entry of a judgment.

See, e.g. Tucker v. Commonwealth Land Title Ins. Co., 800 F.2d 1054

(11th Cir. 1986); Ashby Enterprises, Ltd. v. Weitzman, Dym &

Associates, 780 F.2d 1043 (D.C. Cir. 1986); In re OPM Leasing

Services, Inc., 769 F.2d 911 (2d Cir. 1985); Spika v. Village of

Lombard, Ill., 763 F.2d 282 (7th Cir. 1985); Hall v. Community

Mental Health Center of Beaver County, 772 F.2d 42 (3d Cir. 1985);

Wilson v. Atwood v. Stark, 725 F.2d 255 (5th Cir. en banc), cert

dismissed, 105 S.Ct. 17 (1984); Case v. BASF Wyandotte, 727 F.2d

1034 (Fed. Cir. 1984), cert. denied, 105 S.Ct. 386 (1984); Hensley

v. Chesapeake & Ohio R.R.Co., 651 F.2d 226 (4th Cir. 1981); Buckeye

Cellulose Corp. v. Electric Construction Co., 569 F.2d 1036 (8th

Cir. 1978).

Failure to receive notice may have increased in frequency with

the growth in the caseload in the clerks' offices. The present

strict rule imposes a duty on counsel to maintain contact with the

court while a case is under submission. Such contact is more

difficult to maintain if counsel is outside the district, as is

increasingly common, and can be a burden to the court as well as

counsel.

The effect of the revisions is to place a burden on prevailing

parties who desire certainty that the time for appeal is running.

Such parties can take the initiative to assure that their

adversaries receive effective notice. An appropriate procedure for

such notice is provided in Rule 5.

The revised rule lightens the responsibility but not the workload

of the clerks' offices, for the duty of that office to give notice

of entry of judgment must be maintained.

COMMITTEE NOTES ON RULES - 2001 AMENDMENT

Rule 77(d) is amended to reflect changes in Rule 5(b). A few

courts have experimented with serving Rule 77(d) notices by

electronic means on parties who consent to this procedure. The

success of these experiments warrants express authorization.

Because service is made in the manner provided in Rule 5(b), party

consent is required for service by electronic or other means

described in Rule 5(b)(2)(D). The same provision is made for a

party who wishes to ensure actual communication of the Rule 77(d)

notice by also serving notice.

Changes Made After Publication and Comments Rule 77(d) was

amended to correct an oversight in the published version. The clerk

is to note "service," not "mailing," on the docket.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Appellate Procedure, referred to in text,

are set out in this Appendix.

-End-

-CITE-

28 USC APPENDIX Rule 78 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

X. DISTRICT COURTS AND CLERKS

-HEAD-

Rule 78. Motion Day

-STATUTE-

Unless local conditions make it impracticable, each district

court shall establish regular times and places, at intervals

sufficiently frequent for the prompt dispatch of business, at which

motions requiring notice and hearing may be heard and disposed of;

but the judge at any time or place and on such notice, if any, as

the judge considers reasonable may make orders for the advancement,

conduct, and hearing of actions.

To expedite its business, the court may make provision by rule or

order for the submission and determination of motions without oral

hearing upon brief written statements of reasons in support and

opposition.

-SOURCE-

(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Compare [former] Equity Rule 6 (Motion Day) with the first

paragraph of this rule. The second paragraph authorizes a procedure

found helpful for the expedition of business in some of the Federal

and State courts. See Rule 43(e) of these rules dealing with

evidence on motions. Compare Civil Practice Rules of the Municipal

Court of Chicago (1935), Rules 269, 270, 271.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 79 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

X. DISTRICT COURTS AND CLERKS

-HEAD-

Rule 79. Books and Records Kept by the Clerk and Entries Therein

-STATUTE-

(a) Civil Docket. The clerk shall keep a book known as "civil

docket" of such form and style as may be prescribed by the Director

of the Administrative Office of the United States Courts with the

approval of the Judicial Conference of the United States, and shall

enter therein each civil action to which these rules are made

applicable. Actions shall be assigned consecutive file numbers. The

file number of each action shall be noted on the folio of the

docket whereon the first entry of the action is made. All papers

filed with the clerk, all process issued and returns made thereon,

all appearances, orders, verdicts, and judgments shall be entered

chronologically in the civil docket on the folio assigned to the

action and shall be marked with its file number. These entries

shall be brief but shall show the nature of each paper filed or

writ issued and the substance of each order or judgment of the

court and of the returns showing execution of process. The entry of

an order or judgment shall show the date the entry is made. When in

an action trial by jury has been properly demanded or ordered the

clerk shall enter the word "jury" on the folio assigned to that

action.

(b) Civil Judgments and Orders. The clerk shall keep, in such

form and manner as the Director of the Administrative Office of the

United States Courts with the approval of the Judicial Conference

of the United States may prescribe, a correct copy of every final

judgment or appealable order, or order affecting title to or lien

upon real or personal property, and any other order which the court

may direct to be kept.

(c) Indices; Calendars. Suitable indices of the civil docket and

of every civil judgment and order referred to in subdivision (b) of

this rule shall be kept by the clerk under the direction of the

court. There shall be prepared under the direction of the court

calendars of all actions ready for trial, which shall distinguish

"jury actions" from "court actions."

(d) Other Books and Records of the Clerk. The clerk shall also

keep such other books and records as may be required from time to

time by the Director of the Administrative Office of the United

States Courts with the approval of the Judicial Conference of the

United States.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.

Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Compare [former] Equity Rule 3 (Books Kept by Clerk and Entries

Therein). In connection with this rule, see also the following

statutes of the United States:

U.S.C., Title 5:

Sec. 301 [see Title 28, Sec. 526] (Officials for investigation of

official acts, records and accounts of marshals, attorneys,

clerks of courts, United States commissioners, referees and

trustees)

Sec. 318 [former] (Accounts of district attorneys)

U.S.C., Title 28:

Sec. 556 [former] (Clerks of district courts; books open to

inspection)

Sec. 567 [now 751] (Same; accounts)

Sec. 568 [now 751] (Same; reports and accounts of moneys received;

dockets)

Sec. 813 [former] (Indices of judgment debtors to be kept by

clerks)

And see "Instructions to United States Attorneys, Marshals,

Clerks and Commissioners" issued by the Attorney General of the

United States.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Subdivision (a). The amendment substitutes the Director of the

Administrative Office of the United States Courts, acting subject

to the approval of the Judicial Conference of Senior Circuit

Judges, in the place of the Attorney General as a consequence of

and in accordance with the provisions of the act establishing the

Administrative Office and transferring functions thereto. Act of

August 7, 1939, c. 501, Secs. 1-7, 53 Stat. 1223, 28 U.S.C. Secs.

444-450 [now 601-610].

Subdivision (b). The change in this subdivision does not alter

the nature of the judgments and orders to be recorded in permanent

form but it does away with the express requirement that they be

recorded in a book. This merely gives latitude for the preservation

of court records in other than book form, if that shall seem

advisable, and permits with the approval of the Judicial Conference

the adoption of such modern, space-saving methods as

microphotography. See Proposed Improvements in the Administration

of the Offices of Clerks of United States District Courts, prepared

by the Bureau of the Budget (1941) 38-42. See also Rule 55, Federal

Rules of Criminal Procedure [following section 687 of Title 18

U.S.C.].

Subdivision (c). The words "Separate and" have been deleted as

unduly rigid. There is no sufficient reason for requiring that the

indices in all cases be separate; on the contrary, the requirement

frequently increases the labor of persons searching the records as

well as the labor of the clerk's force preparing them. The matter

should be left to administrative discretion.

The other changes in the subdivision merely conform with those

made in subdivision (b) of the rule.

Subdivision (d). Subdivision (d) is a new provision enabling the

Administrative Office, with the approval of the Judicial

Conference, to carry out any improvements in clerical procedure

with respect to books and records which may be deemed advisable.

See report cited in Note to subdivision (b), supra.

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

The change in nomenclature conforms to the official designation

in Title 28, U.S.C., Sec. 231.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

The terminology is clarified without any change of the prescribed

practice. See amended Rule 58, and the Advisory Committee's Note

thereto.

-End-

-CITE-

28 USC APPENDIX Rule 80 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

X. DISTRICT COURTS AND CLERKS

-HEAD-

Rule 80. Stenographer; Stenographic Report or Transcript as

Evidence

-STATUTE-

[(a) Stenographer.] (Abrogated Dec. 27, 1946, eff. Mar. 19, 1948)

[(b) Official Stenographer.] (Abrogated Dec. 27, 1946, eff. Mar.

19, 1948)

(c) Stenographic Report or Transcript as Evidence. Whenever the

testimony of a witness at a trial or hearing which was

stenographically reported is admissible in evidence at a later

trial, it may be proved by the transcript thereof duly certified by

the person who reported the testimony.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). This follows substantially [former]

Equity Rule 50 (Stenographer - Appointment - Fees). [This

subdivision was abrogated. See amendment note of Advisory Committee

below.]

Note to Subdivision (b). See Reports of Conferences of Senior

Circuit Judges with the Chief Justice of the United States (1936),

22 A.B.A.J. 818, 819; (1937), 24 A.B.A.J. 75, 77. [This subdivision

was abrogated. See amendment note of Advisory Committee below.]

Note to Subdivision (c). Compare Iowa Code (1935) Sec. 11353.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Subdivisions (a) and (b) of Rule 80 have been abrogated because

of Public Law 222, 78th Cong., c. 3, 2d Sess., approved Jan. 20,

1944, 28 U.S.C. Sec. 9a [now 550, 604, 753, 1915, 1920], providing

for the appointment of official stenographers for each district

court, prescribing their duties, providing for the furnishing of

transcripts, the taxation of the fees therefor as costs, and other

related matters. This statute has now been implemented by

Congressional appropriation available for the fiscal year beginning

July 1, 1945.

Subdivision (c) of Rule 80 (Stenographic Report or Transcript as

Evidence) has been retained unchanged.

-End-

-CITE-

28 USC APPENDIX XI. GENERAL PROVISIONS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

XI. GENERAL PROVISIONS

-HEAD-

XI. GENERAL PROVISIONS

-End-

-CITE-

28 USC APPENDIX Rule 81 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

XI. GENERAL PROVISIONS

-HEAD-

Rule 81. Applicability in General

-STATUTE-

(a) Proceedings to Which the Rules Apply.

(1) These rules do not apply to prize proceedings in admiralty

governed by Title 10, U.S.C., Secs. 7651-7681. They do apply to

proceedings in bankruptcy to the extent provided by the Federal

Rules of Bankruptcy Procedure.

(2) These rules are applicable to proceedings for admission to

citizenship, habeas corpus, and quo warranto, to the extent that

the practice in such proceedings is not set forth in statutes of

the United States, the Rules Governing Section 2254 Cases, or the

Rules Governing Section 2255 Proceedings, and has heretofore

conformed to the practice in civil actions.

(3) In proceedings under Title 9, U.S.C., relating to

arbitration, or under the Act of May 20, 1926, ch. 347, Sec. 9

(44 Stat. 585), U.S.C., Title 45, Sec. 159, relating to boards of

arbitration of railway labor disputes, these rules apply only to

the extent that matters of procedure are not provided for in

those statutes. These rules apply to proceedings to compel the

giving of testimony or production of documents in accordance with

a subpoena issued by an officer or agency of the United States

under any statute of the United States except as otherwise

provided by statute or by rules of the district court or by order

of the court in the proceedings.

(4) These rules do not alter the method prescribed by the Act

of February 18, 1922, ch. 57, Sec. 2 (42 Stat. 388), U.S.C.,

Title 7, Sec. 292; or by the Act of June 10, 1930, ch. 436, Sec.

7 (46 Stat. 534), as amended, U.S.C., Title 7, Sec. 499g(c), for

instituting proceedings in the United States district courts to

review orders of the Secretary of Agriculture; or prescribed by

the Act of June 25, 1934, ch. 742, Sec. 2 (48 Stat. 1214),

U.S.C., Title 15, Sec. 522, for instituting proceedings to review

orders of the Secretary of the Interior; or prescribed by the Act

of February 22, 1935, ch. 18, Sec. 5 (49 Stat. 31), U.S.C., Title

15, Sec. 715d(c), as extended, for instituting proceedings to

review orders of petroleum control boards; but the conduct of

such proceedings in the district courts shall be made to conform

to these rules so far as applicable.

(5) These rules do not alter the practice in the United States

district courts prescribed in the Act of July 5, 1935, ch. 372,

Secs. 9 and 10 (49 Stat. 453), as amended, U.S.C., Title 29,

Secs. 159 and 160, for beginning and conducting proceedings to

enforce orders of the National Labor Relations Board; and in

respects not covered by those statutes, the practice in the

district courts shall conform to these rules so far as

applicable.

(6) These rules apply to proceedings for enforcement or review

of compensation orders under the Longshoremen's and Harbor

Workers' Compensation Act, Act of March 4, 1927, c. 509, Secs.

18, 21 (44 Stat. 1434, 1436), as amended, U.S.C., Title 33, Secs.

918, 921, except to the extent that matters of procedure are

provided for in that Act. The provisions for service by

publication and for answer in proceedings to cancel certificates

of citizenship under the Act of June 27, 1952, c. 477, Title III,

c. 2, Sec. 340 (66 Stat. 260), U.S.C., Title 8, Sec. 1451, remain

in effect.

[(7)] (Abrogated Apr. 30, 1951, eff. Aug. 1, 1951)

(b) Scire Facias and Mandamus. The writs of scire facias and

mandamus are abolished. Relief heretofore available by mandamus or

scire facias may be obtained by appropriate action or by

appropriate motion under the practice prescribed in these rules.

(c) Removed Actions. These rules apply to civil actions removed

to the United States district courts from the state courts and

govern procedure after removal. Repleading is not necessary unless

the court so orders. In a removed action in which the defendant has

not answered, the defendant shall answer or present the other

defenses or objections available under these rules within 20 days

after the receipt through service or otherwise of a copy of the

initial pleading setting forth the claim for relief upon which the

action or proceeding is based, or within 20 days after the service

of summons upon such initial pleading, then filed, or within 5 days

after the filing of the petition for removal, whichever period is

longest. If at the time of removal all necessary pleadings have

been served, a party entitled to trial by jury under Rule 38 shall

be accorded it, if the party's demand therefor is served within 10

days after the petition for removal is filed if the party is the

petitioner, or if not the petitioner within 10 days after service

on the party of the notice of filing the petition. A party who,

prior to removal, has made an express demand for trial by jury in

accordance with state law, need not make a demand after removal. If

state law applicable in the court from which the case is removed

does not require the parties to make express demands in order to

claim trial by jury, they need not make demands after removal

unless the court directs that they do so within a specified time if

they desire to claim trial by jury. The court may make this

direction on its own motion and shall do so as a matter of course

at the request of any party. The failure of a party to make demand

as directed constitutes a waiver by that party of trial by jury.

[(d) District of Columbia; Courts and Judges.] (Abrogated Dec.

29, 1948, eff. Oct. 20, 1949)

(e) Law Applicable. Whenever in these rules the law of the state

in which the district court is held is made applicable, the law

applied in the District of Columbia governs proceedings in the

United States District Court for the District of Columbia. When the

word "state" is used, it includes, if appropriate, the District of

Columbia. When the term "statute of the United States" is used, it

includes, so far as concerns proceedings in the United States

District Court for the District of Columbia, any Act of Congress

locally applicable to and in force in the District of Columbia.

When the law of a state is referred to, the word "law" includes the

statutes of that state and the state judicial decisions construing

them.

(f) References to Officer of the United States. Under any rule in

which reference is made to an officer or agency of the United

States, the term "officer" includes a district director of internal

revenue, a former district director or collector of internal

revenue, or the personal representative of a deceased district

director or collector of internal revenue.

-SOURCE-

(As amended Dec. 28, 1939, eff. Apr. 3, 1941; Dec. 27, 1946, eff.

Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 30, 1951,

eff. Aug. 1, 1951; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966,

eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971,

eff. July 1, 1971; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 23, 2001,

eff. Dec. 1, 2001; Apr. 29, 2002, eff. Dec. 1, 2002.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

Note to Subdivision (a). Paragraph (1): Compare the enabling act,

act of June 19, 1934, U.S.C., Title 28, Secs. 723b [see 2072]

(Rules in actions at law; Supreme Court authorized to make) and

723c [see 2072] (Union of equity and action at law rules; power of

Supreme Court). For the application of these rules in bankruptcy

and copyright proceedings, see Orders xxxvi and xxxvii in

Bankruptcy and Rule 1 of Rules of Practice and Procedure under Sec.

25 of the copyright act, act of March 4, 1909, U.S.C., Title 17,

Sec. 25 [see 412, 501 to 504] (Infringement and rules of

procedure).

For examples of statutes which are preserved by paragraph (2)

see: U.S.C., Title 8, ch. 9 [former] (Naturalization); Title 28,

ch. 14 [now 153] (Habeas corpus); Title 28, Secs. 377a-377c (Quo

warranto); and such forfeiture statutes as U.S.C., Title 7, Sec.

116 (Misbranded seeds, confiscation), and Title 21, Sec. 14 [see

334(b)] (Pure Food and Drug Act - condemnation of adulterated or

misbranded food; procedure). See also 443 Cans of Frozen Eggs

Product v. U.S., 226 U.S. 172, 33 S.Ct. 50 (1912).

For examples of statutes which under paragraph (7) will continue

to govern procedure in condemnation cases, see U.S.C., [former]

Title 40, Sec. 258 (Condemnation of realty for sites for public

building, etc., procedure); U.S.C., Title 16, Sec. 831x

(Condemnation by Tennessee Valley Authority); U.S.C., [former]

Title 40, Sec. 120 (Acquisition of lands for public use in District

of Columbia); [former] Title 40, ch. 7 (Acquisition of lands in

District of Columbia for use of United States; condemnation).

Note to Subdivision (b). Some statutes which will be affected by

this subdivision are:

U.S.C., Title 7:

Sec. 222 (Federal Trade Commission powers adopted for enforcement

of Stockyards Act) (By reference to Title 15, Sec. 49)

U.S.C., Title 15:

Sec. 49 (Enforcement of Federal Trade Commission orders and

antitrust laws)

Sec. 77t(c) (Enforcement of Securities and Exchange Commission

orders and Securities Act of 1933)

Sec. 78u(f) (Same; Securities Exchange Act of 1934)

Sec. 79r(g) (Same; Public Utility Holding Company Act of 1935)

U.S.C., Title 16:

Sec. 820 (Proceedings in equity for revocation or to prevent

violations of license of Federal Power Commission licensee)

Sec. 825m(b) (Mandamus to compel compliance with Federal Water

Power Act, etc.)

U.S.C., Title 19:

Sec. 1333(c) (Mandamus to compel compliance with orders of Tariff

Commission, etc.)

U.S.C., Title 28:

Sec. 377 [now 1651] (Power to issue writs)

Sec. 572 [now 1923] (Fees, attorneys, solicitors and proctors)

Sec. 778 [former] (Death of parties; substitution of executor or

administrator). Compare Rule 25(a) (Substitution of parties;

death), and the note thereto.

U.S.C., Title 33:

Sec. 495 (Removal of bridges over navigable waters)

U.S.C., Title 45:

Sec. 88 (Mandamus against Union Pacific Railroad Company)

Sec. 153(p) (Mandamus to enforce orders of Adjustment Board under

Railway Labor Act)

Sec. 185 (Same; National Air Transport Adjustment Board) (By

reference to Sec. 153)

U.S.C., Title 47:

Sec. 11 (Powers of Federal Communications Commission)

Sec. 401(a) (Enforcement of Federal Communications Act and orders

of Commission)

Sec. 406 (Same; compelling furnishing of facilities; mandamus)

U.S.C., Title 49:

Sec. 19a(l) [see 11703(a), 14703, 15903(a)] (Mandamus to compel

compliance with Interstate Commerce Act)

Sec. 20(9) [see 11703(a), 14703, 15903(a)] (Jurisdiction to compel

compliance with interstate commerce laws by mandamus)

For comparable provisions in state practice see Ill. Rev. Stat.

(1937), ch. 110, Sec. 179; Calif. Code Civ. Proc. (Deering, 1937)

Sec. 802.

Note to Subdivision (c). Such statutes as the following dealing

with the removal of actions are substantially continued and made

subject to these rules:

U.S.C., Title 28:

Sec. 71 [now 1441, 1445, 1447] (Removal of suits from state

courts)

Sec. 72 [now 1446, 1447] (Same; procedure)

Sec. 73 [former] (Same; suits under grants of land from different

states)

Sec. 74 [now 1443, 1446, 1447] (Same; causes against persons

denied civil rights)

Sec. 75 [now 1446] (Same; petitioner in actual custody of state

court)

Sec. 76 [now 1442, 1446, 1447] (Same; suits and prosecutions

against revenue officers)

Sec. 77 [now 1442] (Same; suits by aliens)

Sec. 78 [now 1449] (Same; copies of records refused by clerk of

state court)

Sec. 79 [now 1450] (Same; previous attachment bonds or orders)

Sec. 80 [now 1359, 1447, 1919] (Same; dismissal or remand)

Sec. 81 [now 1447] (Same; proceedings in suits removed)

Sec. 82 [former] (Same; record; filing and return)

Sec. 83 [now 1447, 1448] (Service of process after removal)

U.S.C., Title 28, Sec. 72 [now 1446, 1447], supra, however, is

modified by shortening the time for pleading in removed actions.

Note to Subdivision (e). The last sentence of this subdivision

modifies U.S.C., Title 28, Sec. 725 [now 1652] (Laws of States as

rules of decision) in so far as that statute has been construed to

govern matters of procedure and to exclude state judicial decisions

relative thereto.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

Subdivision (a). Despite certain dicta to the contrary [Lynn v.

United States (C.C.A.5th, 1940) 110 F.(2d) 586; Mount Tivy Winery,

Inc. v. Lewis (N.D.Cal. 1942) 42 F.Supp. 636], it is manifest that

the rules apply to actions against the United States under the

Tucker Act [28 U.S.C., Secs. 41(20), 250, 251, 254, 257, 258, 287,

289, 292, 761-765 [now 791, 1346, 1401, 1402, 1491, 1493, 1496,

1501, 1503, 2071, 2072, 2411, 2412, 2501, 2506, 2509, 2510]]. See

United States to use of Foster Wheeler Corp. v. American Surety Co.

of New York (E.D.N.Y. 1939) 25 F.Supp. 700; Boerner v. United

States (E.D.N.Y. 1939) 26 F.Supp. 769; United States v. Gallagher

(C.C.A.9th, 1945) 151 F.(2d) 556. Rules 1 and 81 provide that the

rules shall apply to all suits of a civil nature, whether

cognizable as cases at law or in equity, except those specifically

excepted; and the character of the various proceedings excepted by

express statement in Rule 81, as well as the language of the rules

generally, shows that the term "civil action" [Rule 2] includes

actions against the United States. Moreover, the rules in many

places expressly make provision for the situation wherein the

United States is a party as either plaintiff or defendant. See

Rules 4(d)(4), 12(a), 13(d), 25(d), 37(f), 39(c), 45(c), 54(d),

55(e), 62(e), and 65(c). In United States v. Sherwood (1941) 312

U.S. 584, the Solicitor General expressly conceded in his brief for

the United States that the rules apply to Tucker Act cases. The

Solicitor General stated: "The Government, of course, recognizes

that the Federal Rules of Civil Procedure apply to cases brought

under the Tucker Act." (Brief for the United States, p. 31).

Regarding Lynn v. United States, supra, the Solicitor General said:

"In Lynn v. United States . . . the Circuit Court of Appeals for

the Fifth Circuit went beyond the Government's contention there,

and held that an action under the Tucker Act is neither an action

at law nor a suit in equity and, seemingly, that the Federal Rules

of Civil Procedure are, therefore, inapplicable. We think the

suggestion is erroneous. Rules 4(d), 12(a), 39(c), and 55(e)

expressly contemplate suits against the United States, and nothing

in the enabling Act (48 Stat. 1064) [see 28 U.S.C. 2072] suggests

that the Rules are inapplicable to Tucker Act proceedings, which in

terms are to accord with court rules and their subsequent

modifications (Sec. 4, Act of March 3, 1887, 24 Stat. 505) [see 28

U.S.C. 2071, 2072]." (Brief for the United States, p. 31, n. 17.)

United States v. Sherwood, supra, emphasizes, however, that the

application of the rules in Tucker Act cases affects only matters

of procedure and does not operate to extend jurisdiction. See also

Rule 82. In the Sherwood case, the New York Supreme Court, acting

under Sec. 795 of the New York Civil Practice Act, made an order

authorizing Sherwood, as a judgment creditor, to maintain a suit

under the Tucker Act to recover damages from the United States for

breach of its contract with the judgment debtor, Kaiser, for

construction of a post office building. Sherwood brought suit

against the United States and Kaiser in the District Court for the

Eastern District of New York. The question before the United States

Supreme Court was whether a United States District Court had

jurisdiction to entertain a suit against the United States wherein

private parties were joined as parties defendant. It was contended

that either the Federal Rules of Civil Procedure or the Tucker Act,

or both, embodied the consent of the United States to be sued in

litigations in which issues between the plaintiff and third persons

were to be adjudicated. Regarding the effect of the Federal Rules,

the Court declared that nothing in the rules, so far as they may be

applicable in Tucker Act cases, authorized the maintenance of any

suit against the United States to which it had not otherwise

consented. The matter involved was not one of procedure but of

jurisdiction, the limits of which were marked by the consent of the

United States to be sued. The jurisdiction thus limited is

unaffected by the Federal Rules of Civil Procedure.

Subdivision (a)(2). The added sentence makes it clear that the

rules have not superseded the requirements of U.S.C., Title 28,

Sec. 466 [now 2253]. Schenk v. Plummer (C.C.A. 9th, 1940) 113

F.(2d) 726.

For correct application of the rules in proceedings for

forfeiture of property for violation of a statute of the United

States, such as under U.S.C., Title 22, Sec. 405 (seizure of war

materials intended for unlawful export) or U.S.C., Title 21, Sec.

334(b) (Federal Food, Drug, and Cosmetic Act; formerly Title 21,

Sec. 14, Pure Food and Drug Act), see Reynal v. United States

(C.C.A. 5th, 1945) 153 F.(2d) 929; United States v. 108 Boxes of

Cheddar Cheese (S.D.Iowa 1943) 3 F.R.D. 40.

Subdivision (a)(3). The added sentence makes it clear that the

rules apply to appeals from proceedings to enforce administrative

subpoenas. See Perkins v. Endicott Johnson Corp. (C.C.A. 2d 1942)

128 F.(2d) 208, aff'd on other grounds (1943) 317 U.S. 501; Walling

v. News Printing, Inc. (C.C.A. 3d, 1945) 148 F.(2d) 57; McCrone v.

United States (1939) 307 U.S. 61. And, although the provision

allows full recognition of the fact that the rigid application of

the rules in the proceedings themselves may conflict with the

summary determination desired [Goodyear Tire & Rubber Co. v.

National Labor Relations Board (C.C.A. 6th, 1941) 122 F.(2d) 450;

Cudahy Packing Co. v. National Labor Relations Board (C.C.A. 10th,

1941) 117 F.(2d) 692], it is drawn so as to permit application of

any of the rules in the proceedings whenever the district court

deems them helpful. See, e.g., Peoples Natural Gas Co. v. Federal

Power Commission (App. D.C. 1942) 127 F.(2d) 153, cert. den. (1942)

316 U.S. 700; Martin v. Chandis Securities Co. (C.C.A. 9th, 1942)

128 F.(2d) 731. Compare the application of the rules in summary

proceedings in bankruptcy under General Order 37. See 1 Collier on

Bankruptcy (14th ed. by Moore and Oglebay) 326-327; 2 Collier, op.

cit. supra, 1401-1402; 3 Collier, op. cit. supra, 228-231; 4

Collier, op. cit. supra, 1199-1202.

Subdivision (a)(6). Section 405 of U.S.C., Title 8 originally

referred to in the last sentence of paragraph (6), has been

repealed and Sec. 738 [see 1451], U.S.C., Title 8, has been enacted

in its stead. The last sentence of paragraph (6) has, therefore,

been amended in accordance with this change. The sentence has also

been amended so as to refer directly to the statute regarding the

provision of time for answer, thus avoiding any confusion attendant

upon a change in the statute.

That portion of subdivision (a)(6) making the rules applicable to

proceedings for enforcement or review of compensation orders under

the Longshoremen's and Harbor Workers' Compensation Act [33 U.S.C.

Sec. 901 et seq.] was added by an amendment made pursuant to order

of the Court, December 28, 1939, effective three months subsequent

to the adjournment of the 76th Congress, January 3, 1941.

Subdivision (c). The change in subdivision (c) effects more

speedy trials in removed actions. In some states many of the courts

have only two terms a year. A case, if filed 20 days before a term,

is returnable to that term, but if filed less than 20 days before a

term, is returnable to the following term, which convenes six

months later. Hence, under the original wording of Rule 81(c),

where a case is filed less than 20 days before the term and is

removed within a few days but before answer, it is possible for the

defendant to delay interposing his answer or presenting his

defenses by motion for six months or more. The rule as amended

prevents this result.

Subdivision (f). The use of the phrase "the United States or an

officer or agency thereof" in the rules (as e.g., in Rule 12(a) and

amended Rule 73(a)) could raise the question of whether "officer"

includes a collector of internal revenue, a former collector, or

the personal representative of a deceased collector, against whom

suits for tax refunds are frequently instituted. Difficulty might

ensue for the reason that a suit against a collector or his

representative has been held to be a personal action. Sage v.

United States (1919) 250 U.S. 33; Smietanka v. Indiana Steel Co.

(1921) 257 U.S. 1; United States v. Nunnally Investment Co. (1942)

316 U.S. 258. The addition of subdivision (f) to Rule 81 dispels

any doubts on the matter and avoids further litigation.

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

Subdivision (a) - Paragraph (1). - The Copyright Act of March 4,

1909, as amended, was repealed and Title 17, U.S.C., enacted into

positive law by the Act of July 30, 1947, c. 391, Secs. 1, 2, 61

Stat. 652. The first amendment, therefore, reflects this change.

The second amendment involves a matter of nomenclature and reflects

the official designation of the United States District Court for

the District of Columbia in Title 28, U.S.C. Secs. 88, 132.

Paragraph (2). - The amendment substitutes the present statutory

reference.

Paragraph (3). - The Arbitration Act of February 12, 1925, was

repealed and Title 9, U.S.C., enacted into positive law by the Act

of July 30, 1947, c. 392, Secs. 1, 2, 61 Stat. 669, and the

amendment reflects this change. The Act of May 20, 1926, c. 347,

Sec. 9 (44 Stat. 585), U.S.C., Title 45, Sec. 159, deals with the

review by the district court of an award of a board of arbitration

under the Railway Labor Act, and provides, inter alia, for an

appeal within 10 days from a final judgment of the district court

to the court of appeals. It is not clear whether Title 28, U.S.C.,

repealed this time period and substituted the time periods provided

for in Title 28, U.S.C., Sec. 2107, normally a minimum of 30 days.

If there has been no repeal, then the 10-day time period of 45

U.S.C., Sec. 159, applies by virtue of the "unless" clause in Rule

73(a); if there has been a repeal, then the other time periods

stated in Rule 73(a), normally a minimum of 30 days, apply. For

discussion, see Note to Rule 73 (Sec. ), supra.

Paragraph (4). - The nomenclature of the district courts is

changed to conform to the official designation in Title 28, U.S.C.,

Sec. 132(a).

Paragraph (5). - The nomenclature of the district courts is

changed to conform to the official designation in Title 28, U.S.C.,

Sec. 132(a). The Act of July 5, 1935, c. 372, Secs. 9 and 10, was

amended by Act of June 23, 1947, c. 120, 61 Stat. 143, 146, and

will probably be amended from time to time. Insertion in Rule

81(a)(5) of the words "as amended", and deletion of the subsection

reference "(e), (g), and (i)" of U.S.C., Title 29, Sec. 160, make

correcting references and are sufficiently general to include

future statutory amendment.

Paragraph (6). - The Chinese Exclusion Acts were repealed by the

Act of December 17, 1943, c. 344, Sec. 1, 57 Stat. 600, and hence

the reference to the Act of September 13, 1888, as amended, is

deleted. The Longshoremen's and Harbor Workers' Compensation Act of

March 4, 1927, was amended by Act of June 25, 1936, c. 804, 49

Stat. 1921, and hence the words "as amended" have been added to

reflect this change and, as they are sufficiently general, to

include future statutory amendment. The Nationality Act of October

14, 1940, c. 876, 54 Stat. 1137, 1172, repealed and replaced the

Act of June 29, 1906, as amended, and correcting statutory

references are, therefore, made.

Subdivision (c). - In the first sentence the change in

nomenclature conforms to the official designation of district

courts in Title 28, U.S.C., Sec. 132(a); and the word "all" is

deleted as superfluous. The need for revision of the third sentence

is occasioned by the procedure for removal set forth in revised

Title 28, U.S.C., Sec. 1446. Under the prior removal procedure

governing civil actions, 28 U.S.C., Sec. 72 (1946), the petition

for removal had to be first presented to and filed with the state

court, except in the case of removal on the basis of prejudice or

local influence, within the time allowed "to answer or plead to the

declaration or complaint of the plaintiff"; and the defendant had

to file a transcript of the record in the federal court within

thirty days from the date of filing his removal petition. Under

Sec. 1446(a) removal is effected by a defendant filing with the

proper United States district court "a verified petition containing

a short and plain statement of the facts which entitled him or them

to removal together with a copy of all process, pleadings, and

orders served upon him or them in such action." And Sec. 1446(b)

provides: "The petition for removal of a civil action or proceeding

may be filed within twenty days after commencement of the action or

service of process, whichever is later." This subsection (b) gives

trouble in states where an action may be both commenced and service

of process made without serving or otherwise giving the defendant a

copy of the complaint or other initial pleading. To cure this

statutory defect, the Judge's Committee appointed pursuant to

action of the Judicial Conference and headed by Judge Albert B.

Maris is proposing an amendment to Sec. 1446(b) to read

substantially as follows: "The petition for removal of a civil

action or proceedings shall be filed within 20 days after the

receipt through service or otherwise by the defendant of a copy of

the initial pleading setting forth the claim for relief upon which

the action or proceeding is based." The revised third sentence of

Rule 81(c) is geared to this proposed statutory amendment; and it

gives the defendant at least 5 days after removal within which to

present his defenses.*

The change in the last sentence of subdivision (c) reflects the

fact that a transcript of the record is no longer required under

Sec. 1446, and safeguards the right to demand a jury trial, where

the right has not already been waived and where the parties are at

issue - "all necessary pleadings have been served." Only, rarely

will the last sentence of Rule 81(c) have any applicability, since

removal will normally occur before the pleadings are closed, and in

this usual situation Rule 38(b) applies and safeguards the right to

jury trial. See Moore's Federal practice (1st ed.) 3020.

Subdivision (d). - This subdivision is abrogated because it is

obsolete and unnecessary under Title 28, U.S.C. Sections 88, 132,

and 133 provide that the District of Columbia constitutes a

judicial district, the district court of that district is the

United States District Court for the District of Columbia, and the

personnel of that court are district judges. Sections 41, 43, and

44 provide that the District of Columbia is a judicial circuit, the

court of appeals of that circuit is the United States Court of

Appeals for the District of Columbia, and the personnel of that

court are circuit judges.

Subdivision (e). - The change in nomenclature conforms to the

official designation of the United States District Court for the

District of Columbia in Title 28, U.S.C., Secs. 132(a), 88.

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

Subdivision (a)(4). This change reflects the transfer of

functions from the Secretary of Commerce to the Secretary of the

Interior made by 1939 Reorganization Plan No. II, Sec. 4(e), 53

Stat. 1433.

Subdivision (a)(6). The proper current reference is to the 1952

statute superseding the 1940 statute.

Subdivision (c). Most of the cases have held that a party who has

made a proper express demand for jury trial in the State court is

not required to renew the demand after removal of the action.

Zakoscielny v. Waterman Steamship Corp., 16 F.R.D. 314 (D.Md.

1954); Talley v. American Bakeries Co., 15 F.R.D. 391 (E.D.Tenn.

1954); Rehrer v. Service Trucking Co., 15 F.R.D. 113 (D.Del. 1953);

5 Moore's Federal Practice ¶ 38.39[3] (2d ed. 1951); 1 Barron

& Holtzoff, Federal Practice and Procedure Sec. 132 (Wright ed.

1960). But there is some authority to the contrary. Petsel v.

Chicago, B. & Q.R. Co., 101 F.Supp. 1006 (S.D.Iowa 1951) Nelson v.

American Nat. Bank & Trust Co., 9 F.R.D. 680 (E.D.Tenn. 1950). The

amendment adopts the preponderant view.

In order still further to avoid unintended waivers of jury trial,

the amendment provides that where by State law applicable in the

court from which the case is removed a party is entitled to jury

trial without making an express demand, he need not make a demand

after removal. However, the district court for calendar or other

purposes may on its own motion direct the parties to state whether

they demand a jury, and the court must make such a direction upon

the request of any party. Under the amendment a district court may

find it convenient to establish a routine practice of giving these

directions to the parties in appropriate cases.

Subdivision (f). The amendment recognizes the change of

nomenclature made by Treasury Dept. Order 150-26(2), 18 Fed. Reg.

3499 (1953).

As to a special problem arising under Rule 25 (Substitution of

parties) in actions for refund of taxes, see the Advisory

Committee's Note to the amendment of Rule 25(d), effective July 19,

1961; and 4 Moore's Federal Practice Sec. 25.09 at 531 (2d ed.

1950).

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

See Note to Rule 1, supra.

Statutory proceedings to forfeit property for violation of the

laws of the United States, formerly governed by the admiralty

rules, will be governed by the unified and supplemental rules. See

Supplemental Rule A.

Upon the recommendation of the judges of the United States

District Court for the District of Columbia, the Federal Rules of

Civil Procedure are made applicable to probate proceedings in that

court. The exception with regard to adoption proceedings is removed

because the court no longer has jurisdiction of those matters; and

the words "mental health" are substituted for "lunacy" to conform

to the current characterization in the District.

The purpose of the amendment to paragraph (3) is to permit the

deletion from Rule 73(a) of the clause "unless a shorter time is

provided by law." The 10 day period fixed for an appeal under 45

U.S.C. Sec. 159 is the only instance of a shorter time provided for

appeals in civil cases. Apart from the unsettling effect of the

clause, it is eliminated because its retention would preserve the

15 day period heretofore allowed by 28 U.S.C. Sec. 2107 for appeals

from interlocutory decrees in admiralty, it being one of the

purposes of the amendment to make the time for appeals in civil and

admiralty cases uniform under the unified rules. See Advisory

Committee's Note to subdivision (a) of Rule 73.

NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT

The amendments eliminate inappropriate references to appellate

procedure.

NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT

Title 28, U.S.C., Sec. 2243 now requires that the custodian of a

person detained must respond to an application for a writ of habeas

corpus "within three days unless for good cause additional time,

not exceeding twenty days, is allowed." The amendment increases to

forty days the additional time that the district court may allow in

habeas corpus proceedings involving persons in custody pursuant to

a judgment of a state court. The substantial increase in the number

of such proceedings in recent years has placed a considerable

burden on state authorities. Twenty days has proved in practice too

short a time in which to prepare and file the return in many such

cases. Allowance of additional time should, of course, be granted

only for good cause.

While the time allowed in such a case for the return of the writ

may not exceed forty days, this does not mean that the state must

necessarily be limited to that period of time to provide for the

federal court the transcript of the proceedings of a state trial or

plenary hearing if the transcript must be prepared after the habeas

corpus proceeding has begun in the federal court.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

COMMITTEE NOTES ON RULES - 2001 AMENDMENT

Former Copyright Rule 1 made the Civil Rules applicable to

copyright proceedings except to the extent the Civil Rules were

inconsistent with Copyright Rules. Abrogation of the Copyright

Rules leaves the Civil Rules fully applicable to copyright

proceedings. Rule 81(a)(1) is amended to reflect this change.

The District of Columbia Court Reform and Criminal Procedure Act

of 1970, Pub.L. 91-358, 84 Stat. 473, transferred mental health

proceedings formerly held in the United States District Court for

the District of Columbia to local District of Columbia courts. The

provision that the Civil Rules do not apply to these proceedings is

deleted as superfluous.

The reference to incorporation of the Civil Rules in the Federal

Rules of Bankruptcy Procedure has been restyled.

Changes Made After Publication and Comments The Committee Note

was amended to correct the inadvertent omission of a negative. As

revised, it correctly reflects the language that is stricken from

the rule.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

This amendment brings Rule 81(a)(2) into accord with the Rules

Governing Sec. 2254 and Sec. 2255 proceedings. In its present form,

Rule 81(a)(2) includes return-time provisions that are inconsistent

with the provisions in the Rules Governing Secs. 2254 and 2255. The

inconsistency should be eliminated, and it is better that the time

provisions continue to be set out in the other rules without

duplication in Rule 81. Rule 81 also directs that the writ be

directed to the person having custody of the person detained.

Similar directions exist in the Sec. 2254 and Sec. 2255 rules,

providing additional detail for applicants subject to future

custody. There is no need for partial duplication in Rule 81.

The provision that the civil rules apply to the extent that

practice is not set forth in the Sec. 2254 and Sec. 2255 rules

dovetails with the provisions in Rule 11 of the Sec. 2254 rules and

Rule 12 of the Sec. 2255 rules.

Changes Made After Publication and Comment. The only change since

publication is deletion of an inadvertent reference to Sec. 2241

proceedings.

EFFECTIVE DATE OF ABROGATION

Abrogation of par. (7) of subdivision (a) of this rule as

effective August 1, 1951, see Effective Date note under Rule 71A.

-FOOTNOTE-

* Note. - The Supreme Court made these changes in the

committee's proposed amendment to Rule 81(c): The phrase, "or

within 20 days after the service of summons upon such initial

pleading, then filed," was inserted following the phrase,

"within 20 days after the receipt through service or otherwise

of a copy of the initial pleading setting forth the claim for

relief upon which the action or proceeding is based", because

in several states suit is commenced by service of summons upon

the defendant, notifying him that the plaintiff's pleading has

been filed with the clerk of court. Thus, he may never receive

a copy of the initial pleading. The added phrase is intended

to give the defendant 20 days after the service of such

summons in which to answer in a removed action, or 5 days

after the filing of the petition for removal, whichever is

longer. In these states, the 20-day period does not begin to

run until such pleading is actually filed. The last word of

the third sentence was changed from "longer" to "longest"

because of the added phrase.

The phrase, "and who has not already waived his right to

such trial," which previously appeared in the fourth sentence

of subsection (c) of Rule 81, was deleted in order to afford a

party who has waived his right to trial by jury in a state

court an opportunity to assert that right upon removal to a

federal court.

-End-

-CITE-

28 USC APPENDIX Rule 82 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

XI. GENERAL PROVISIONS

-HEAD-

Rule 82. Jurisdiction and Venue Unaffected

-STATUTE-

These rules shall not be construed to extend or limit the

jurisdiction of the United States district courts or the venue of

actions therein. An admiralty or maritime claim within the meaning

of Rule 9(h) shall not be treated as a civil action for the

purposes of Title 28, U.S.C., Secs. 1391-1392.

-SOURCE-

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

July 1, 1966; Apr. 23, 2001, eff. Dec. 1, 2001.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

These rules grant extensive power of joining claims and

counterclaims in one action, but, as this rule states, such grant

does not extend federal jurisdiction. The rule is declaratory of

existing practice under the [former] Federal Equity Rules with

regard to such provisions as [former] Equity Rule 26 on Joinder of

Causes of Action and [former] Equity Rule 30 on Counterclaims.

Compare Shulman and Jaegerman, Some Jurisdictional Limitations on

Federal Procedure, 45 Yale L.J. 393 (1936).

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

Title 28, U.S.C. Sec. 1391(b) provides: "A civil action wherein

jurisdiction is not founded solely on diversity of citizenship may

be brought only in the judicial district where all defendants

reside, except as otherwise provided by law." This provision cannot

appropriately be applied to what were formerly suits in admiralty.

The rationale of decisions holding it inapplicable rests largely on

the use of the term "civil action"; i.e., a suit in admiralty is

not a "civil action" within the statute. By virtue of the amendment

to Rule 1, the provisions of Rule 2 convert suits in admiralty into

civil actions. The added sentence is necessary to avoid an

undesirable change in existing law with respect to venue.

COMMITTEE NOTES ON RULES - 2001 AMENDMENT

The final sentence of Rule 82 is amended to delete the reference

to 28 U.S.C. Sec. 1393, which has been repealed.

STYLE COMMENT

The recommendation that the change be made without publication

carries with it a recommendation that style changes not be made.

Styling would carry considerable risks. The first sentence of Rule

82, for example, states that the Civil Rules do not "extend or

limit the jurisdiction of the United States district courts." That

sentence is a flat lie if "jurisdiction" includes personal or

quasi-in rem jurisdiction. The styling project on this rule

requires publication and comment.

-End-

-CITE-

28 USC APPENDIX Rule 83 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

XI. GENERAL PROVISIONS

-HEAD-

Rule 83. Rules by District Courts; Judge's Directives

-STATUTE-

(a) Local Rules.

(1) Each district court, acting by a majority of its district

judges, may, after giving appropriate public notice and an

opportunity for comment, make and amend rules governing its

practice. A local rule shall be consistent with - but not

duplicative of - Acts of Congress and rules adopted under 28

U.S.C. Secs. 2072 and 2075, and shall conform to any uniform

numbering system prescribed by the Judicial Conference of the

United States. A local rule takes effect on the date specified by

the district court and remains in effect unless amended by the

court or abrogated by the judicial council of the circuit. Copies

of rules and amendments shall, upon their promulgation, be

furnished to the judicial council and the Administrative Office

of the United States Courts and be made available to the public.

(2) A local rule imposing a requirement of form shall not be

enforced in a manner that causes a party to lose rights because

of a nonwillful failure to comply with the requirement.

(b) Procedures When There is No Controlling Law. A judge may

regulate practice in any manner consistent with federal law, rules

adopted under 28 U.S.C. Secs. 2072 and 2075, and local rules of the

district. No sanction or other disadvantage may be imposed for

noncompliance with any requirement not in federal law, federal

rules, or the local district rules unless the alleged violator has

been furnished in the particular case with actual notice of the

requirement.

-SOURCE-

(As amended Apr. 29, 1985, eff. Aug. 1, 1985; Apr. 27, 1995, eff.

Dec. 1, 1995.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

This rule substantially continues U.S.C., Title 28, Sec. 731 [now

2071] (Rules of practice in district courts) with the additional

requirement that copies of such rules and amendments be furnished

to the Supreme Court of the United States. See [former] Equity Rule

79 (Additional Rules by District Court). With the last sentence

compare United States Supreme Court Admiralty Rules (1920), Rule 44

(Right of Trial Courts To Make Rules of Practice) (originally

promulgated in 1842).

NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT

Rule 83, which has not been amended since the Federal Rules were

promulgated in 1938, permits each district to adopt local rules not

inconsistent with the Federal Rules by a majority of the judges.

The only other requirement is that copies be furnished to the

Supreme Court.

The widespread adoption of local rules and the modest procedural

prerequisites for their promulgation have led many commentators to

question the soundness of the process as well as the validity of

some rules, See 12 C. Wright & A. Miller, Federal Practice and

Procedure: Civil Sec. 3152, at 217 (1973); Caballero, Is There an

Over-Exercise of Local Rule-Making Powers by the United States

District Courts?, 24 Fed. Bar News 325 (1977). Although the

desirability of local rules for promoting uniform practice within a

district is widely accepted, several commentators also have

suggested reforms to increase the quality, simplicity, and

uniformity of the local rules. See Note, Rule 83 and the Local

Federal Rules, 67 Colum.L.Rev. 1251 (1967), and Comment, The Local

Rules of Civil Procedure in the Federal District Courts - A Survey,

1966 Duke L.J. 1011.

The amended Rule attempts, without impairing the procedural

validity of existing local rules, to enhance the local rulemaking

process by requiring appropriate public notice of proposed rules

and an opportunity to comment on them. Although some district

courts apparently consult the local bar before promulgating rules,

many do not, which has led to criticism of a process that has

district judges consulting only with each other. See 12 C. Wright &

A. Miller, supra, Sec. 3152, at 217; Blair, The New Local Rules for

Federal Practice In Iowa, 23 Drake L.Rev. 517 (1974). The new

language subjects local rulemaking to scrutiny similar to that

accompanying the Federal Rules, administrative rulemaking, and

legislation. It attempts to assure that the expert advice of

practitioners and scholars is made available to the district court

before local rules are promulgated. See Weinstein, Reform of Court

Rule-Making Procedures 84-87, 127-37, 151 (1977).

The amended Rule does not detail the procedure for giving notice

and an opportunity to be heard since conditions vary from district

to district. Thus, there is no explicit requirement for a public

hearing, although a district may consider that procedure

appropriate in all or some rulemaking situations. See generally,

Weinstein, supra, at 117-37, 151. The new Rule does not foreclose

any other form of consultation. For example, it can be accomplished

through the mechanism of an "Advisory Committee" similar to that

employed by the Supreme Court in connection with the Federal Rules

themselves.

The amended Rule provides that a local rule will take effect upon

the date specified by the district court and will remain in effect

unless amended by the district court or abrogated by the judicial

council. The effectiveness of a local rule should not be deferred

until approved by the judicial council because that might unduly

delay promulgation of a local rule that should become effective

immediately, especially since some councils do not meet frequently.

Similarly, it was thought that to delay a local rule's

effectiveness for a fixed period of time would be arbitrary and

that to require the judicial council to abrogate a local rule

within a specified time would be inconsistent with its power under

28 U.S.C. Sec. 332 (1976) to nullify a local rule at any time. The

expectation is that the judicial council will examine all local

rules, including those currently in effect, with an eye toward

determining whether they are valid and consistent with the Federal

Rules, promote inter-district uniformity and efficiency, and do not

undermine the basic objectives of the Federal Rules.

The amended Rule requires copies of local rules to be sent upon

their promulgation to the judicial council and the Administrative

Office of the United States Courts rather than to the Supreme

Court. The Supreme Court was the appropriate filing place in 1938,

when Rule 83 originally was promulgated, but the establishment of

the Administrative Office makes it a more logical place to develop

a centralized file of local rules. This procedure is consistent

with both the Criminal and the Appellate Rules. See Fed.R.Crim.P.

57(a); Fed.R.App.P. 47. The Administrative Office also will be able

to provide improved utilization of the file because of its recent

development of a Local Rules Index.

The practice pursued by some judges of issuing standing orders

has been controversial, particularly among members of the

practicing bar. The last sentence in Rule 83 has been amended to

make certain that standing orders are not inconsistent with the

Federal Rules or any local district court rules. Beyond that, it is

hoped that each district will adopt procedures, perhaps by local

rule, for promulgating and reviewing single-judge standing orders.

NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT

Subdivison (a). This rule is amended to reflect the requirement

that local rules be consistent not only with the national rules but

also with Acts of Congress. The amendment also states that local

rules should not repeat Acts of Congress or national rules.

The amendment also requires that the numbering of local rules

conform with any uniform numbering system that may be prescribed by

the Judicial Conference. Lack of uniform numbering might create

unnecessary traps for counsel and litigants. A uniform numbering

system would make it easier for an increasingly national bar and

for litigants to locate a local rule that applies to a particular

procedural issue.

Paragraph (2) is new. Its aim is to protect against loss of

rights in the enforcement of local rules relating to matters of

form. For example, a party should not be deprived of a right to a

jury trial because its attorney, unaware of - or forgetting - a

local rule directing that jury demands be noted in the caption of

the case, includes a jury demand only in the body of the pleading.

The proscription of paragraph (2) is narrowly drawn - covering only

violations attributable to nonwillful failure to comply and only

those involving local rules directed to matters of form. It does

not limit the court's power to impose substantive penalties upon a

party if it or its attorney contumaciously or willfully violates a

local rule, even one involving merely a matter of form. Nor does it

affect the court's power to enforce local rules that involve more

than mere matters of form - for example, a local rule requiring

parties to identify evidentiary matters relied upon to support or

oppose motions for summary judgment.

Subdivision (b). This rule provides flexibility to the court in

regulating practice when there is no controlling law. Specifically,

it permits the court to regulate practice in any manner consistent

with Acts of Congress, with rules adopted under 28 U.S.C. Secs.

2072 and 2075, and with the district local rules.

This rule recognizes that courts rely on multiple directives to

control practice. Some courts regulate practice through the

published Federal Rules and the local rules of the court. Some

courts also have used internal operating procedures, standing

orders, and other internal directives. Although such directives

continue to be authorized, they can lead to problems. Counsel or

litigants may be unaware of various directives. In addition, the

sheer volume of directives may impose an unreasonable barrier. For

example, it may be difficult to obtain copies of the directives.

Finally, counsel or litigants may be unfairly sanctioned for

failing to comply with a directive. For these reasons, the

amendment to this rule disapproves imposing any sanction or other

disadvantage on a person for noncompliance with such an internal

directive, unless the alleged violator has been furnished actual

notice of the requirement in a particular case.

There should be no adverse consequence to a party or attorney for

violating special requirements relating to practice before a

particular court unless the party or attorney has actual notice of

those requirements. Furnishing litigants with a copy outlining the

judge's practices - or attaching instructions to a notice setting a

case for conference or trial - would suffice to give actual notice,

as would an order in a case specifically adopting by reference a

judge's standing order and indicating how copies can be obtained.

-End-

-CITE-

28 USC APPENDIX Rule 84 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

XI. GENERAL PROVISIONS

-HEAD-

Rule 84. Forms

-STATUTE-

The forms contained in the Appendix of Forms are sufficient under

the rules and are intended to indicate the simplicity and brevity

of statement which the rules contemplate.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

In accordance with the practice found useful in many codes,

provision is here made for a limited number of official forms which

may serve as guides in pleading. Compare 2 Mass. Gen. Laws (Ter.

Ed., 1932) ch. 231, Sec. 147, Forms 1-47; English Annual Practice

(1937) Appendix A to M, inclusive; Conn. Practice Book (1934)

Rules, 47-68, pp. 123-427.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

The amendment serves to emphasize that the forms contained in the

Appendix of Forms are sufficient to withstand attack under the

rules under which they are drawn, and that the practitioner using

them may rely on them to that extent. The circuit courts of appeals

generally have upheld the use of the forms as promoting desirable

simplicity and brevity of statement. Sierocinski v. E. I. DuPont

DeNemours & Co. (C.C.A. 3d, 1939) 103 F.(2d) 843; Swift & Co. v.

Young (C.C.A. 4th, 1939) 107 F.(2d) 170; Sparks v. England (C.C.A.

8th, 1940) 113 F.(2d) 579; Ramsouer v. Midland Valley R. Co.

(C.C.A. 8th, 1943) 135 F.(2d) 101. And the forms as a whole have

met with widespread approval in the courts. See cases cited in 1

Moore's Federal Practice (1938), Cum. Supplement Sec. 8.07, under

"Page 554"; see also Commentary, The Official Forms (1941) 4 Fed.

Rules Serv. 954. In Cook, "Facts" and "Statements of Fact" (1937) 4

U.Chi.L.Rev. 233, 245-246, it is said with reference to what is now

Rule 84: ". . . pleaders in the federal courts are not to be left

to guess as to the meaning of [the] language" in Rule 8 (a)

regarding the form of the complaint. "All of which is as it should

be. In no other way can useless litigation be avoided." Ibid. The

amended rule will operate to discourage isolated results such as

those found in Washburn v. Moorman Mfg. Co. (S.D.Cal. 1938) 25

F.Supp. 546; Employers Mutual Liability Ins. Co. of Wisconsin v.

Blue Line Transfer Co. (W.D.Mo. 1941) 5 Fed. Rules Serv. 12e.235,

Case 2.

-End-

-CITE-

28 USC APPENDIX Rule 85 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

XI. GENERAL PROVISIONS

-HEAD-

Rule 85. Title

-STATUTE-

These rules may be known and cited as the Federal Rules of Civil

Procedure.

-End-

-CITE-

28 USC APPENDIX Rule 86 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

XI. GENERAL PROVISIONS

-HEAD-

Rule 86. Effective Date

-STATUTE-

(a) (!1) [Effective Date of Original Rules.] These rules will

take effect on the day which is 3 months subsequent to the

adjournment of the second regular session of the 75th Congress, but

if that day is prior to September 1, 1938, then these rules will

take effect on September 1, 1938. They govern all proceedings in

actions brought after they take effect and also all further

proceedings in actions then pending, except to the extent that in

the opinion of the court their application in a particular action

pending when the rules take effect would not be feasible or would

work injustice, in which event the former procedure applies.

(b) Effective Date of Amendments. The amendments adopted by the

Supreme Court on December 27, 1946, and transmitted to the Attorney

General on January 2, 1947, shall take effect on the day which is

three months subsequent to the adjournment of the first regular

session of the 80th Congress, but, if that day is prior to

September 1, 1947, then these amendments shall take effect on

September 1, 1947. They govern all proceedings in actions brought

after they take effect and also all further proceedings in actions

then pending, except to the extent that in the opinion of the court

their application in a particular action pending when the

amendments take effect would not be feasible or would work

injustice, in which event the former procedure applies.

(c) Effective Date of Amendments. The amendments adopted by the

Supreme Court on December 29, 1948, and transmitted to the Attorney

General on December 31, 1948, shall take effect on the day

following the adjournment of the first regular session of the 81st

Congress.

(d) Effective Date of Amendments. The amendments adopted by the

Supreme Court on April 17, 1961, and transmitted to the Congress on

April 18, 1961, shall take effect on July 19, 1961. They govern all

proceedings in actions brought after they take effect and also all

further proceedings in actions then pending, except to the extent

that in the opinion of the court their application in a particular

action pending when the amendments take effect would not be

feasible or would work injustice, in which event the former

procedure applies.

(e) Effective Date of Amendments. The amendments adopted by the

Supreme Court on January 21, 1963, and transmitted to the Congress

on January 21, 1963, shall take effect on July 1, 1963. They govern

all proceedings in actions brought after they take effect and also

all further proceedings in actions then pending, except to the

extent that in the opinion of the court their application in a

particular action pending when the amendments take effect would not

be feasible or would work injustice, in which event the former

procedure applies.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.

Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961; Jan. 21 and Mar.

18, 1963, eff. July 1, 1963.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1937

See [former] Equity Rule 81 (These Rules Effective February 1,

1913 - Old Rules Abrogated).

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

By making the general amendments effective on the day following

the adjournment of the first regular session of Congress to which

they are transmitted, subdivision (c), supra, departs slightly from

the prior practice of making amendments effective on the day which

is three months subsequent to the adjournment of Congress or on

September 1 of that year, whichever day is later. The reason for

this departure is that no added period of time is needed for the

Bench and Bar to acquaint themselves with the general amendments,

which effect a change in nomenclature to conform to revised Title

28, substitute present statutory references to this Title and cure

the omission or defect occasioned by the statutory revision in

relation to the substitution of public officers, to a cost bond on

appeal, and to procedure after removal (see Rules 25(d), 73(c),

81(c)).

EFFECTIVE DATE OF 1966 AMENDMENT; TRANSMISSION TO CONGRESS;

RESCISSION

Sections 2-4 of the Order of the Supreme Court, dated Feb. 28,

1966, 383 U.S. 1031, provided:

"2. That the foregoing amendments and additions to the Rules of

Civil Procedure shall take effect on July 1, 1966, and shall govern

all proceedings in actions brought thereafter and also in all

further proceedings in actions then pending, except to the extent

that in the opinion of the court their application in a particular

action then pending would not be feasible or would work injustice,

in which event the former procedure applies.

"3. That the Chief Justice be, and he hereby is, authorized to

transmit to the Congress the foregoing amendments and additions to

the Rules of Civil Procedure in accordance with the provisions of

Title 28, U.S.C., Secs. 2072 and 2073.

"4. That: (a) subdivision (c) of Rule 6 of the Rules of Civil

Procedure for the United States District Courts promulgated by this

court on December 20, 1937, effective September 16, 1938; (b) Rule

2 of the Rules for Practice and Procedure under section 25 of An

Act To amend and consolidate the Acts respecting copyright,

approved March 4, 1909, promulgated by this court on June 1, 1909,

effective July 1, 1909; and (c) the Rules of Practice in Admiralty

and Maritime Cases, promulgated by this court on December 6, 1920,

effective March 7, 1921, as revised, amended and supplemented be,

and they hereby are, rescinded, effective July 1, 1966."

-FOOTNOTE-

(!1) Subdivision heading supplied editorially.

-End-

-CITE-

28 USC APPENDIX APPENDIX OF FORMS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

APPENDIX OF FORMS

-MISC1-

(SEE RULE 84)

INTRODUCTORY STATEMENT

1. The following forms are intended for illustration only. They

are limited in number. No attempt is made to furnish a manual of

forms. Each form assumes the action to be brought in the Southern

District of New York. If the district in which an action is brought

has divisions, the division should be indicated in the caption.

2. Except where otherwise indicated each pleading, motion, and

other paper should have a caption similar to that of the summons,

with the designation of the particular paper substituted for the

word "Summons". In the caption of the summons and in the caption of

the complaint all parties must be named but in other pleadings and

papers, it is sufficient to state the name of the first party on

either side, with an appropriate indication of other parties. See

Rules 4(b), 7(b)(2), and 10(a).

3. In Form 3 and the forms following, the words, "Allegation of

jurisdiction," are used to indicate the appropriate allegation in

Form 2.

4. Each pleading, motion, and other paper is to be signed in his

individual name by at least one attorney of record (Rule 11). The

attorney's name is to be followed by his address as indicated in

Form 3. In forms following Form 3 the signature and address are not

indicated.

5. If a party is not represented by an attorney, the signature

and address of the party are required in place of those of the

attorney.

-End-

-CITE-

28 USC APPENDIX Form 1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 1. Summons

-STATUTE-

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CIVIL ACTION, FILE NUMBER ____

A. B., Plaintiff

v.

] Summons

C. D., Defendant

To the above-named Defendant:

You are hereby summoned and required to serve upon ____,

plaintiff's attorney, whose address is ______, an answer to the

complaint which is herewith served upon you, within 20 (!1) days

after service of this summons upon you, exclusive of the day of

service. If you fail to do so, judgment by default will be taken

against you for the relief demanded in the complaint.

____________,

Clerk of Court.

[Seal of the U.S. District Court]

Dated ____________

(This summons is issued pursuant to Rule 4 of the Federal Rules

of Civil Procedure)

(!1) If the United States or an officer or agency thereof is a

defendant, the time to be inserted as to it is 60 days.

-SOURCE-

(As amended Dec. 29, 1948, eff. Oct. 20, 1949.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

The change in nomenclature conforms to the official designation

of a district court and of a court of appeals in Title 28, U.S.C.,

Secs. 43(a), 132(a); and the more appropriate reference to "United

States Court House, Foley Square, City of New York" in Form 19

replaces the outmoded reference.

-End-

-CITE-

28 USC APPENDIX Form 1A 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

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

Summons

-STATUTE-

TO: ___(A)___ [as ___(B)___ of ___(C)___]

A lawsuit has been commenced against you (or the entity on whose

behalf you are addressed). A copy of the complaint is attached to

this notice. It has been filed in the United States District Court

for the ___(D)___ and has been assigned docket number ___(E)___.

This is not a formal summons or notification from the court, but

rather my request that you sign and return the enclosed waiver of

service in order to save the cost of serving you with a judicial

summons and an additional copy of the complaint. The cost of

service will be avoided if I receive a signed copy of the waiver

within ______(F)______ days after the date designated below as the

date on which this Notice and Request is sent. I enclose a stamped

and addressed envelope (or other means of cost-free return) for

your use. An extra copy of the waiver is also attached for your

records.

If you comply with this request and return the signed waiver, it

will be filed with the court and no summons will be served on you.

The action will then proceed as if you had been served on the date

the waiver is filed, except that you will not be obligated to

answer the complaint before 60 days from the date designated below

as the date on which this notice is sent (or before 90 days from

that date if your address is not in any judicial district of the

United States).

If you do not return the signed waiver within the time indicated,

I will take appropriate steps to effect formal service in a manner

authorized by the Federal Rules of Civil Procedure and will then,

to the extent authorized by those Rules, ask the court to require

you (or the party on whose behalf you are addressed) to pay the

full costs of such service. In that connection, please read the

statement concerning the duty of parties to waive the service of

the summons, which is set forth on the reverse side (or at the

foot) of the waiver form.

I affirm that this request is being sent to you on behalf of the

plaintiff, this __ day of ____, __.

______________________

SIGNATURE OF PLAINTIFF'S ATTORNEY OR

UNREPRESENTED PLAINTIFF

-MISC1-

NOTES

A - Name of individual defendant (or name of officer or agent of

corporate defendant)

B - Title, or other relationship of individual to corporate

defendant

C - Name of corporate defendant, if any

D - District

E - Docket number of action

F - Addressee must be given at least 30 days (60 days if located

in foreign country) in which to return waiver

-SOURCE-

(As added Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC2-

NOTES OF ADVISORY COMMITTEE ON RULES - 1993

Forms 1A and 1B reflect the revision of Rule 4. They replace Form

18-A.

-End-

-CITE-

28 USC APPENDIX Form 1B 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 1B. Waiver of Service of Summons

-STATUTE-

TO: ___(name of plaintiff's attorney or unrepresented

plaintiff)___

I acknowledge receipt of your request that I waive service of a

summons in the action of ____(caption of action)____, which is case

number ____(docket number)____ in the United States District Court

for the ____(district)____. I have also received a copy of the

complaint in the action, two copies of this instrument, and a means

by which I can return the signed waiver to you without cost to me.

I agree to save the cost of service of a summons and an

additional copy of the complaint in this lawsuit by not requiring

that I (or the entity on whose behalf I am acting) be served with

judicial process in the manner provided by Rule 4.

I (or the entity on whose behalf I am acting) will retain all

defenses or objections to the lawsuit or to the jurisdiction or

venue of the court except for objections based on a defect in the

summons or in the service of the summons.

I understand that a judgment may be entered against me (or the

party on whose behalf I am acting) if an answer or motion under

Rule 12 is not served upon you within 60 days after ____(date

request was sent)____, or within 90 days after that date if the

request was sent outside the United States.

______ XXXXXXXXXXXXX

Date Signature

PRINTED/TYPED NAME: ______________

[AS __________________]

[OF __________________]

-MISC1-

TO BE PRINTED ON REVERSE SIDE OF THE WAIVER FORM OR SET FORTH AT

THE FOOT OF THE FORM:

DUTY TO AVOID UNNECESSARY COSTS OF SERVICE OF SUMMONS

Rule 4 of the Federal Rules of Civil Procedure requires certain

parties to cooperate in saving unnecessary costs of service of the

summons and complaint. A defendant located in the United States

who, after being notified of an action and asked by a plaintiff

located in the United States to waive service of a summons, fails

to do so will be required to bear the cost of such service unless

good cause be shown for its failure to sign and return the waiver.

It is not good cause for a failure to waive service that a party

believes that the complaint is unfounded, or that the action has

been brought in an improper place or in a court that lacks

jurisdiction over the subject matter of the action or over its

person or property. A party who waives service of the summons

retains all defenses and objections (except any relating to the

summons or to the service of the summons), and may later object to

the jurisdiction of the court or to the place where the action has

been brought.

A defendant who waives service must within the time specified on

the waiver form serve on the plaintiff's attorney (or unrepresented

plaintiff) a response to the complaint and must also file a signed

copy of the response with the court. If the answer or motion is not

served within this time, a default judgment may be taken against

that defendant. By waiving service, a defendant is allowed more

time to answer than if the summons had been actually served when

the request for waiver of service was received.

-SOURCE-

(As added Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC2-

NOTES OF ADVISORY COMMITTEE ON RULES - 1993

Forms 1A and 1B reflect the revision of Rule 4. They replace Form

18-A.

-End-

-CITE-

28 USC APPENDIX Form 2 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 2. Allegation of Jurisdiction

-STATUTE-

(a) Jurisdiction founded on diversity of citizenship and amount.

Plaintiff is a [citizen of the State of Connecticut] (!1)

[corporation incorporated under the laws of the State of

Connecticut having its principal place of business in the State of

Connecticut] and defendant is a corporation incorporated under the

laws of the State of New York having its principal place of

business in a State other than the State of Connecticut. The matter

in controversy exceeds, exclusive of interest and costs, the sum

specified by 28 U.S.C. Sec. 1332.

(b) Jurisdiction founded on the existence of a Federal question.

The action arises under [the Constitution of the United States,

Article _, Section _]; [the _ Amendment to the Constitution of the

United States, Section _]; [the Act of _, _ Stat. _; U.S.C., Title

_, Sec. _]; [the Treaty of the United States (here describe the

treaty)] (!2) as hereinafter more fully appears.

(c) Jurisdiction founded on the existence of a question arising

under particular statutes.

The action arises under the Act of ___, ___ Stat. ___; U.S.C.,

Title ___, Sec. ___, as hereinafter more fully appears.

(d) Jurisdiction founded on the admiralty or maritime character

of the claim.

This is a case of admiralty and maritime jurisdiction, as

hereinafter more fully appears. [If the pleader wishes to invoke

the distinctively maritime procedures referred to in Rule 9(h), add

the following or its substantial equivalent: This is an admiralty

or maritime claim within the meaning of Rule 9(h).]

(!1) Form for natural person.

(!2) Use the appropriate phrase or phrases. The general

allegation of the existence of a Federal question is ineffective

unless the matters constituting the claim for relief as set forth

in the complaint raise a Federal question.

-MISC1-

EXPLANATORY NOTES

1. Diversity of Citizenship. U.S.C., Title 28, Sec. 1332

(Diversity of citizenship; amount in controversy; costs), as

amended by P.L. 85-554, 72 Stat. 415, July 25, 1958, states in

subsection (c) that "For the purposes of this section and section

1441 of this title [removable actions], a corporation shall be

deemed a citizen of any State by which it has been incorporated and

of the State where it has its principal place of business." Thus if

the defendant corporation in Form 2(a) had its principal place of

business in Connecticut, diversity of citizenship would not exist.

An allegation regarding the principal place of business of each

corporate party must be made in addition to an allegation regarding

its place of incorporation.

2. Jurisdictional Amount. U.S.C., Title 28, Sec. 1331 (Federal

question; amount in controversy; costs) and Sec. 1332 (Diversity of

citizenship; amount in controversy; costs), as amended by P.L.

85-554, 72 Stat. 415, July 25, 1958, require that the amount in

controversy, exclusive of interest and costs, be in excess of

$10,000. The allegation as to the amount in controversy may be

omitted in any case where by law no jurisdictional amount is

required. See, for example, U.S.C., Title 28, Sec. 1338 (Patents,

copyrights, trade-marks, and unfair competition), Sec. 1343 (Civil

rights and elective franchise).

3. Pleading Venue. Since improper venue is a matter of defense,

it is not necessary for plaintiff to include allegations showing

the venue to be proper. See 1 Moore's Federal Practice, par. 0.140

[1. - 4] (2d ed. 1959).

-SOURCE-

(As amended Apr. 17, 1961, eff. July 19, 1961; Feb. 28, 1966, eff.

July 1, 1966; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 26, 1999, eff.

Dec. 1, 1999.)

-MISC2-

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

Since the Civil Rules have not heretofore been applicable to

proceedings in Admiralty (Rule 81(a)(1)), Form 2 naturally has not

contained a provision for invoking the admiralty jurisdiction. The

form has never purported to be comprehensive, as making provision

for all possible grounds of jurisdiction; but a provision for

invoking the admiralty jurisdiction is particularly appropriate as

an incident of unification.

Certain distinctive features of the admiralty practice must be

preserved in unification, just as certain distinctive

characteristics of equity were preserved in the merger of law and

equity in 1938. Rule 9(h) provides the device whereby, after

unification, with its abolition of the distinction between civil

actions and suits in admiralty, the pleader may indicate his choice

of the distinctively maritime procedures, and designates those

features that are preserved. This form illustrates an appropriate

way in which the pleader may invoke those procedures. Use of this

device is not necessary if the claim is cognizable only by virtue

of the admiralty and maritime jurisdiction, nor if the claim is

within the exclusive admiralty jurisdiction of the district court.

Omission of a statement such as this from the pleading indicates

the pleader's choice that the action proceed as a conventional

civil action, if this is jurisdictionally possible, without the

distinctive maritime remedies and procedures. It should be

remembered, however, that Rule 9(h) provides that a pleading may be

amended to add or withdraw such an identifying statement subject to

the principles stated in Rule 15.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

This form is revised to reflect amendments to 28 U.S.C. Secs.

1331 and 1332 providing jurisdiction for federal questions without

regard to the amount in controversy and raising the amount required

to be in controversy in diversity cases to fifty thousand dollars.

-End-

-CITE-

28 USC APPENDIX Form 3 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 3. Complaint on a Promissory Note

-STATUTE-

1. Allegation of jurisdiction.

2. Defendant on or about June 1, 1935, executed and delivered to

plaintiff a promissory note [in the following words and figures:

(here set out the note verbatim)]; [a copy of which is hereto

annexed as Exhibit A]; [whereby defendant promised to pay to

plaintiff or order on June 1, 1936 the sum of ___ dollars with

interest thereon at the rate of six percent. per annum].

3. Defendant owes to plaintiff the amount of said note and

interest.

Wherefore plaintiff demands judgment against defendant for the

sum of ___ dollars, interest, and costs.

SIGNED: ______________,

ATTORNEY FOR PLAINTIFF.

ADDRESS: _____________

-MISC1-

NOTES

1. The pleader may use the material in one of the three sets of

brackets. His choice will depend upon whether he desires to plead

the document verbatim, or by exhibit, or according to its legal

effect.

2. Under the rules free joinder of claims is permitted. See rules

8(e) and 18. Consequently the claims set forth in each and all of

the following forms may be joined with this complaint or with each

other. Ordinarily each claim should be stated in a separate

division of the complaint, and the divisions should be designated

as counts successively numbered. In particular the rules permit

alternative and inconsistent pleading. See Form 10.

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC2-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

At various places, these Forms [Forms 3, 4, 5, 6, 7, 8, 9, 10,

11, 12, 13, 18, 21] allege or refer to damages of "ten thousand

dollars, interest, and costs," or the like. The Forms were written

at a time when the jurisdictional amount in ordinary "diversity"

and "Federal question" cases was an amount in excess of $3,000,

exclusive of interest and costs, so the illustrative amounts set

out in the Forms were adequate for jurisdictional purposes.

However, U.S.C. Title 28, Sec. 1331 (Federal question; amount in

controversy; costs) and Sec. 1332 (Diversity of citizenship; amount

in controversy; costs), as amended by Pub. Law 85-554, 72 Stat.

415, July 25, 1958, now require that the amount in controversy,

exclusive of interest and costs, be in excess of $10,000.

Accordingly the Forms are misleading. They are amended at

appropriate places by deleting the stated dollar amount and

substituting a blank, to be properly filled in by the pleader.

-End-

-CITE-

28 USC APPENDIX Form 4 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 4. Complaint on an Account

-STATUTE-

1. Allegation of jurisdiction.

2. Defendant owes plaintiff ___ dollars according to the account

hereto annexed as Exhibit A.

Wherefore (etc. as in Form 3).

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This form was amended in 1963 by deleting the stated dollar

amount and substituting a blank, to be properly filled in by the

pleader. See Note of Advisory Committee under Form 3.

-End-

-CITE-

28 USC APPENDIX Form 5 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 5. Complaint for Goods Sold and Delivered

-STATUTE-

1. Allegation of jurisdiction.

2. Defendant owes plaintiff ___ dollars for goods sold and

delivered by plaintiff to defendant between June 1, 1936 and

December 1, 1936.

Wherefore (etc. as in Form 3).

-MISC1-

NOTE

This form may be used where the action is for an agreed price or

for the reasonable value of the goods.

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC2-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This form was amended in 1963 by deleting the stated dollar

amount and substituting a blank, to be properly filled in by the

pleader. See Note of Advisory Committee under Form 3.

-End-

-CITE-

28 USC APPENDIX Form 6 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 6. Complaint for Money Lent

-STATUTE-

1. Allegation of jurisdiction.

2. Defendant owes plaintiff ___ dollars for money lent by

plaintiff to defendant on June 1, 1936.

Wherefore (etc. as in Form 3).

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This form was amended in 1963 by deleting the stated dollar

amount and substituting a blank, to be properly filled in by the

pleader. See Note of Advisory Committee under Form 3.

-End-

-CITE-

28 USC APPENDIX Form 7 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 7. Complaint for Money Paid by Mistake

-STATUTE-

1. Allegation of jurisdiction.

2. Defendant owes plaintiff ___ dollars for money paid by

plaintiff to defendant by mistake on June 1, 1936, under the

following circumstances: [here state the circumstances with

particularity - see Rule 9(b)].

Wherefore (etc. as in Form 3).

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This form was amended in 1963 by deleting the stated dollar

amount and substituting a blank, to be properly filled in by the

pleader. See Note of Advisory Committee under Form 3.

-End-

-CITE-

28 USC APPENDIX Form 8 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 8. Complaint for Money Had and Received

-STATUTE-

1. Allegation of jurisdiction.

2. Defendant owes plaintiff ___ dollars for money had and

received from one G. H. on June 1, 1936, to be paid by defendant to

plaintiff.

Wherefore (etc. as in Form 3).

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This form was amended in 1963 by deleting the stated dollar

amount and substituting a blank, to be properly filled in by the

pleader. See Note of Advisory Committee under Form 3.

-End-

-CITE-

28 USC APPENDIX Form 9 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 9. Complaint for Negligence

-STATUTE-

1. Allegation of jurisdiction.

2. On June 1, 1936, in a public highway called Boylston Street in

Boston, Massachusetts, defendant negligently drove a motor vehicle

against plaintiff who was then crossing said highway.

3. As a result plaintiff was thrown down and had his leg broken

and was otherwise injured, was prevented from transacting his

business, suffered great pain of body and mind, and incurred

expenses for medical attention and hospitalization in the sum of

one thousand dollars.

Wherefore plaintiff demands judgment against defendant in the sum

of ___ dollars and costs.

-MISC1-

NOTE

Since contributory negligence is an affirmative defense, the

complaint need contain no allegation of due care of plaintiff.

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC2-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This form was amended in 1963 by deleting the stated dollar

amount and substituting a blank, to be properly filled in by the

pleader. See Note of Advisory Committee under Form 3.

-End-

-CITE-

28 USC APPENDIX Form 10 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 10. Complaint for Negligence Where Plaintiff Is Unable To

Determine Definitely Whether the Person Responsible Is C. D. or

E. F. or Whether Both Are Responsible and Where His Evidence May

Justify a Finding of Wilfulness or of Recklessness or of

Negligence

-STATUTE-

A. B., Plaintiff

v.

C. D. and E. F.,

] Complaint

Defendants

1. Allegation of jurisdiction.

2. On June 1, 1936, in a public highway called Boylston Street in

Boston, Massachusetts, defendant C. D. or defendant E. F., or both

defendants C. D. and E. F. wilfully or recklessly or negligently

drove or caused to be driven a motor vehicle against plaintiff who

was then crossing said highway.

3. As a result plaintiff was thrown down and had his leg broken

and was otherwise injured, was prevented from transacting his

business, suffered great pain of body and mind, and incurred

expenses for medical attention and hospitalization in the sum of

one thousand dollars.

Wherefore plaintiff demands judgment against C. D. or against E.

F. or against both in the sum of ___ dollars and costs.

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This form was amended in 1963 by deleting the stated dollar

amount and substituting a blank, to be properly filled in by the

pleader. See Note of Advisory Committee under Form 3.

-End-

-CITE-

28 USC APPENDIX Form 11 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 11. Complaint for Conversion

-STATUTE-

1. Allegation of jurisdiction.

2. On or about December 1, 1936, defendant converted to his own

use ten bonds of the ____ Company (here insert brief identification

as by number and issue) of the value of ___ dollars, the property

of plaintiff.

Wherefore plaintiff demands judgment against defendant in the sum

of ___ dollars, interest, and costs.

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This form was amended in 1963 by deleting the stated dollar

amount and substituting a blank, to be properly filled in by the

pleader. See Note of Advisory Committee under Form 3.

-End-

-CITE-

28 USC APPENDIX Form 12 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 12. Complaint for Specific Performance of Contract To Convey

Land

-STATUTE-

1. Allegation of jurisdiction.

2. On or about December 1, 1936, plaintiff and defendant entered

into an agreement in writing a copy of which is hereto annexed as

Exhibit A.

3. In accord with the provisions of said agreement plaintiff

tendered to defendant the purchase price and requested a conveyance

of the land, but defendant refused to accept the tender and refused

to make the conveyance.

4. Plaintiff now offers to pay the purchase price.

Wherefore plaintiff demands (1) that defendant be required

specifically to perform said agreement, (2) damages in the sum of

one thousand dollars, and (3) that if specific performance is not

granted plaintiff have judgment against defendant in the sum of ___

dollars.

-MISC1-

NOTE

Here, as in Form 3, plaintiff may set forth the contract verbatim

in the complaint or plead it, as indicated, by exhibit, or plead it

according to its legal effect. Furthermore, plaintiff may seek

legal or equitable relief or both even though this was impossible

under the system in operation before these rules.

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC2-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This form was amended in 1963 by deleting the stated dollar

amount and substituting a blank, to be properly filled in by the

pleader. See Note of Advisory Committee under Form 3.

-End-

-CITE-

28 USC APPENDIX Form 13 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 13. Complaint on Claim for Debt and To Set Aside Fraudulent

Conveyance Under Rule 18(b)

-STATUTE-

A. B., Plaintiff

v.

C. D. and E. F.,

] Complaint

Defendants

1. Allegation of jurisdiction.

2. Defendant C. D. on or about ____ executed and delivered to

plaintiff a promissory note [in the following words and figures:

(here set out the note verbatim)]; [a copy of which is hereto

annexed as Exhibit A]; [whereby defendant C. D. promised to pay to

plaintiff or order on ___ the sum of five thousand dollars with

interest thereon at the rate of ___ percent. per annum].

3. Defendant C. D. owes to plaintiff the amount of said note and

interest.

4. Defendant C. D. on or about ___ conveyed all his property,

real and personal [or specify and describe] to defendant E. F. for

the purpose of defrauding plaintiff and hindering and delaying the

collection of the indebtedness evidenced by the note above referred

to.

Wherefore plaintiff demands:

(1) That plaintiff have judgment against defendant C. D. for ___

dollars and interest; (2) that the aforesaid conveyance to

defendant E. F. be declared void and the judgment herein be

declared a lien on said property; (3) that plaintiff have judgment

against the defendants for costs.

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This form was amended in 1963 by deleting the stated dollar

amount and substituting a blank, to be properly filled in by the

pleader. See Note of Advisory Committee under Form 3.

-End-

-CITE-

28 USC APPENDIX Form 14 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 14. Complaint for Negligence Under Federal Employer's

Liability Act

-STATUTE-

1. Allegation of jurisdiction.

2. During all the times herein mentioned defendant owned and

operated in interstate commerce a railroad which passed through a

tunnel located at ___ and known as Tunnel No. ___.

3. On or about June 1, 1936, defendant was repairing and

enlarging the tunnel in order to protect interstate trains and

passengers and freight from injury and in order to make the tunnel

more conveniently usable for interstate commerce.

4. In the course of thus repairing and enlarging the tunnel on

said day defendant employed plaintiff as one of its workmen, and

negligently put plaintiff to work in a portion of the tunnel which

defendant had left unprotected and unsupported.

5. By reason of defendant's negligence in thus putting plaintiff

to work in that portion of the tunnel, plaintiff was, while so

working pursuant to defendant's orders, struck and crushed by a

rock, which fell from the unsupported portion of the tunnel, and

was (here describe plaintiff's injuries).

6. Prior to these injuries, plaintiff was a strong, able-bodied

man, capable of earning and actually earning ___ dollars per day.

By these injuries he has been made incapable of any gainful

activity, has suffered great physical and mental pain, and has

incurred expense in the amount of ___ dollars for medicine, medical

attendance, and hospitalization.

Wherefore plaintiff demands judgment against defendant in the sum

of ___ dollars and costs.

-End-

-CITE-

28 USC APPENDIX Form 15 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 15. Complaint for Damages Under Merchant Marine Act

-STATUTE-

1. Allegation of jurisdiction. [If the pleader wishes to invoke

the distinctively maritime procedures referred to in Rule 9(h), add

the following or its substantial equivalent: This is an admiralty

or maritime claim within the meaning of Rule 9(h).]

2. During all the times herein mentioned defendant was the owner

of the steamship ___ and used it in the transportation of freight

for hire by water in interstate and foreign commerce.

3. During the first part of (month and year) at ___ plaintiff

entered the employ of defendant as an able seaman on said steamship

under seamen's articles of customary form for a voyage from ___

ports to the Orient and return at a wage of ___ dollars per month

and found, which is equal to a wage of ___ dollars per month as a

shore worker.

4. On June 1, 1936, said steamship was about ___ days out of the

port of ___ and was being navigated by the master and crew on the

return voyage to ___ ports. (Here describe weather conditions and

the condition of the ship and state as in an ordinary complaint for

personal injuries the negligent conduct of defendant.)

5. By reason of defendant's negligence in thus (brief statement

of defendant's negligent conduct) and the unseaworthiness of said

steamship, plaintiff was (here describe plaintiff's injuries).

6. Prior to these injuries, plaintiff was a strong, able-bodied

man, capable of earning and actually earning ___ dollars per day.

By these injuries he has been made incapable of any gainful

activity; has suffered great physical and mental pain, and has

incurred expense in the amount of ___ dollars for medicine, medical

attendance, and hospitalization.

Wherefore plaintiff demands judgment against defendant in the sum

of ___ dollars and costs.

-SOURCE-

(As amended Feb. 28, 1966, eff. July 1, 1966.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT

See Advisory Committee's Note to Form 2.

-End-

-CITE-

28 USC APPENDIX Form 16 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 16. Complaint for Infringement of Patent

-STATUTE-

1. Allegation of jurisdiction.

2. On May 16, 1934, United States Letters Patent No. __ were duly

and legally issued to plaintiff for an invention in an electric

motor; and since that date plaintiff has been and still is the

owner of those Letters Patent.

3. Defendant has for a long time past been and still is

infringing those Letters Patent by making, selling, and using

electric motors embodying the patented invention, and will continue

to do so unless enjoined by this court.

4. Plaintiff has placed the required statutory notice on all

electric motors manufactured and sold by him under said Letters

Patent, and has given written notice to defendant of his said

infringement.

Wherefore plaintiff demands a preliminary and final injunction

against continued infringement, an accounting for damages, and an

assessment of interest and costs against defendant.

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

The prayer for relief is amended to reflect the language of the

present patent statute, Title 35, U.S.C., Sec. 284 (Damages).

-End-

-CITE-

28 USC APPENDIX Form 17 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 17. Complaint for Infringement of Copyright and Unfair

Competition

-STATUTE-

1. Allegation of jurisdiction.

2. Prior to March, 1936, plaintiff, who then was and ever since

has been a citizen of the United States, created and wrote an

original book, entitled __________.

3. This book contains a large amount of material wholly original

with plaintiff and is copyrightable subject matter under the laws

of the United States.

4. Between March 2, 1936, and March 10, 1936, plaintiff complied

in all respects with the Act of (give citation) and all other laws

governing copyright, and secured the exclusive rights and

privileges in and to the copyright of said book, and received from

the Register of Copyrights a certificate of registration, dated and

identified as follows: "March 10, 1936, Class ____, No. ___."

5. Since March 10, 1936, said book has been published by

plaintiff and all copies of it made by plaintiff or under his

authority or license have been printed, bound, and published in

strict conformity with the provisions of the Act of ____ and all

other laws governing copyright.

6. Since March 10, 1936, plaintiff has been and still is the sole

proprietor of all rights, title, and interest in and to the

copyright in said book.

7. After March 10, 1936, defendant infringed said copyright by

publishing and placing upon the market a book entitled ____, which

was copied largely from plaintiff's copyrighted book, entitled

__________.

8. A copy of plaintiff's copyrighted book is hereto attached as

"Exhibit 1"; and a copy of defendant's infringing book is hereto

attached as "Exhibit 2."

9. Plaintiff has notified defendant that defendant has infringed

the copyright of plaintiff, and defendant has continued to infringe

the copyright.

10. After March 10, 1936, and continuously since about ____,

defendant has been publishing, selling and otherwise marketing the

book entitled __________, and has thereby been engaging in unfair

trade practices and unfair competition against plaintiff to

plaintiff's irreparable damage.

Wherefore plaintiff demands:

(1) That defendant, his agents, and servants be enjoined during

the pendency of this action and permanently from infringing said

copyright of said plaintiff in any manner, and from publishing,

selling, marketing or otherwise disposing of any copies of the book

entitled __________.

(2) That defendant be required to pay to plaintiff such damages

as plaintiff has sustained in consequence of defendant's

infringement of said copyright and said unfair trade practices and

unfair competition and to account for

(a) all gains, profits and advantages derived by defendant by

said trade practices and unfair competition and

(b) all gains, profits, and advantages derived by defendant by

his infringement of plaintiff's copyright or such damages as to the

court shall appear proper within the provisions of the copyright

statutes, but not less than two hundred and fifty dollars.

(3) That defendant be required to deliver up to be impounded

during the pendency of this action all copies of said book

entitled __________ in his possession or under his control and to

deliver up for destruction all infringing copies and all plates,

molds, and other matter for making such infringing copies.

(4) That defendant pay to plaintiff the costs of this action and

reasonable attorney's fees to be allowed to the plaintiff by the

court.

(5) That plaintiff have such other and further relief as is just.

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

This form, as set out, incorporates amendments made at the same

time certain rules of the Federal Rules of Civil Procedure were

amended. See Rule 86(b) of such rules.

-End-

-CITE-

28 USC APPENDIX Form 18 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 18. Complaint for Interpleader and Declaratory Relief

-STATUTE-

1. Allegation of jurisdiction.

2. On or about June 1, 1935, plaintiff issued to G. H. a policy

of life insurance whereby plaintiff promised to pay to K. L. as

beneficiary the sum of ___ dollars upon the death of G. H. The

policy required the payment by G. H. of a stipulated premium on

June 1, 1936, and annually thereafter as a condition precedent to

its continuance in force.

3. No part of the premium due June 1, 1936, was ever paid and the

policy ceased to have any force or effect on July 1, 1936.

4. Thereafter, on September 1, 1936, G. H. and K. L. died as the

result of a collision between a locomotive and the automobile in

which G. H. and K. L. were riding.

5. Defendant C. D. is the duly appointed and acting executor of

the will of G. H.; defendant E. F. is the duly appointed and acting

executor of the will of K. L.; defendant X. Y. claims to have been

duly designated as beneficiary of said policy in place of K. L.

6. Each of defendants, C. D., E. F., and X. Y. is claiming that

the above-mentioned policy was in full force and effect at the time

of the death of G. H.; each of them is claiming to be the only

person entitled to receive payment of the amount of the policy and

has made demand for payment thereof.

7. By reason of these conflicting claims of the defendants,

plaintiff is in great doubt as to which defendant is entitled to be

paid the amount of the policy, if it was in force at the death of

G. H.

Wherefore plaintiff demands that the court adjudge:

(1) That none of the defendants is entitled to recover from

plaintiff the amount of said policy or any part thereof.

(2) That each of the defendants be restrained from instituting

any action against plaintiff for the recovery of the amount of said

policy or any part thereof.

(3) That, if the court shall determine that said policy was in

force at the death of G. H., the defendants be required to

interplead and settle between themselves their rights to the money

due under said policy, and that plaintiff be discharged from all

liability in the premises except to the person whom the court shall

adjudge entitled to the amount of said policy.

(4) That plaintiff recover its costs.

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This form was amended in 1963 by deleting the stated dollar

amount and substituting a blank, to be properly filled in by the

pleader. See Note of Advisory Committee under Form 3.

-End-

-CITE-

28 USC APPENDIX Form 18-A 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

[Form 18-A. Abrogated Apr. 22, 1993, eff. Dec. 1, 1993]

-STATUTE-

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

This form is superseded by Forms 1A and 1B in view of the

revision of Rule 4.

-End-

-CITE-

28 USC APPENDIX Form 19 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 19. Motion To Dismiss, Presenting Defenses of Failure To State

a Claim, of Lack of Service of Process, of Improper Venue, and of

Lack of Jurisdiction Under Rule 12(b)

-STATUTE-

The defendant moves the court as follows:

1. To dismiss the action because the complaint fails to state a

claim against defendant upon which relief can be granted.

2. To dismiss the action or in lieu thereof to quash the return

of service of summons on the grounds (a) that the defendant is a

corporation organized under the laws of Delaware and was not and is

not subject to service of process within the Southern District of

New York, and (b) that the defendant has not been properly served

with process in this action, all of which more clearly appears in

the affidavits of M. N. and X. Y. hereto annexed as Exhibit A and

Exhibit B respectively.

3. To dismiss the action on the ground that it is in the wrong

district because (a) the jurisdiction of this court is invoked

solely on the ground that the action arises under the Constitution

and laws of the United States and (b) the defendant is a

corporation incorporated under the laws of the State of Delaware

and is not licensed to do or doing business in the Southern

District of New York, all of which more clearly appears in the

affidavits of K. L. and V. W. hereto annexed as Exhibits C and D,

respectively.

4. To dismiss the action on the ground that the court lacks

jurisdiction because the amount actually in controversy is less

than ten thousand dollars exclusive of interest and costs.

Signed: ______________

Attorney for Defendant.

Address: _____________

Notice of Motion

To: ______________

Attorney for Plaintiff.

________________

Please take notice, that the undersigned will bring the above

motion on for hearing before this Court at Room __, United States

Court House, Foley Square, City of New York, on the ___ day of____,

193_, at 10 o'clock in the forenoon of that day or as soon

thereafter as counsel can be heard.

Signed: ______________

Attorney for Defendant.

Address: _____________

-SOURCE-

(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff.

July 19, 1961.)

-MISC1-

EXPLANATORY NOTES

1. The above motion and notice of motion may be combined and

denominated Notice of Motion. See Rule 7(b).

2. As to paragraph 3, see U.S.C., Title 28, Sec. 1391 (Venue

generally), subsections (b) and (c).

3. As to paragraph 4, see U.S.C., Title 28, Sec. 1331 (Federal

question; amount in controversy; costs), as amended by P.L. 85-554,

72 Stat. 415, July 25, 1958, requiring that the amount in

controversy, exclusive of interest and costs, be in excess of

$10,000.

-SOURCE-

(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff.

July 19, 1961.)

-MISC2-

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

The change in nomenclature conforms to the official designation

of a district court and of a court of appeals in Title 28, U.S.C.,

Secs. 43(a), 132(a); and the more appropriate reference to "United

States Court House, Foley Square, City of New York" in Form 19

replaces the outmoded reference.

-End-

-CITE-

28 USC APPENDIX Form 20 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

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

-STATUTE-

FIRST DEFENSE

The complaint fails to state a claim against defendant upon which

relief can be granted.

SECOND DEFENSE

If defendant is indebted to plaintiffs for the goods mentioned in

the complaint, he is indebted to them jointly with G. H. G. H. is

alive; is a citizen of the State of New York and a resident of this

district, is subject to the jurisdiction of this court, as to both

service of process and venue; can be made a party without depriving

this court of jurisdiction of the present parties, and has not been

made a party.

THIRD DEFENSE

Defendant admits the allegation contained in paragraphs 1 and 4

of the complaint; alleges that he is without knowledge or

information sufficient to form a belief as to the truth of the

allegations contained in paragraph 2 of the complaint; and denies

each and every other allegation contained in the complaint.

FOURTH DEFENSE

The right of action set forth in the complaint did not accrue

within six years next before the commencement of this action.

COUNTERCLAIM

(Here set forth any claim as a counterclaim in the manner in

which a claim is pleaded in a complaint. No statement of the

grounds on which the court's jurisdiction depends need be made

unless the counterclaim requires independent grounds of

jurisdiction.)

CROSS-CLAIM AGAINST DEFENDANT M. N.

(Here set forth the claim constituting a cross-claim against

defendant M. N. in the manner in which a claim is pleaded in a

complaint. The statement of grounds upon which the court's

jurisdiction depends need not be made unless the cross-claim

requires independent grounds of jurisdiction.)

-MISC1-

NOTE

The above form contains examples of certain defenses provided for

in Rule 12(b). The first defense challenges the legal sufficiency

of the complaint. It is a substitute for a general demurrer or a

motion to dismiss.

The second defense embodies the old plea in abatement; the

decision thereon, however, may well provide under Rules 19 and 21

for the citing in of the party rather than an abatement of the

action.

The third defense is an answer on the merits.

The fourth defense is one of the affirmative defenses provided

for in Rule 8(c).

The answer also includes a counterclaim and a cross-claim.

NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT

The explanatory note incorporates revisions made by the Advisory

Committee at the same time amendments to certain rules of the

Federal Rules of Civil Procedure were made. See also rule 12(b), as

amended.

-End-

-CITE-

28 USC APPENDIX Form 21 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

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

for Interpleader

-STATUTE-

DEFENSE

Defendant admits the allegations stated in paragraph 1 of the

complaint; and denies the allegations stated in paragraph 2 to the

extent set forth in the counterclaim herein.

COUNTERCLAIM FOR INTERPLEADER

1. Defendant received the sum of ___ dollars as a deposit from E.

F.

2. Plaintiff has demanded the payment of such deposit to him by

virtue of an assignment of it which he claims to have received from

E. F.

3. E. F. has notified the defendant that he claims such deposit,

that the purported assignment is not valid, and that he holds the

defendant responsible for the deposit.

Wherefore defendant demands:

(1) That the court order E. F. to be made a party defendant to

respond to the complaint and to this counterclaim.(!1)

(2) That the court order the plaintiff and E. F. to interplead

their respective claims.

(3) That the court adjudge whether the plaintiff or E. F. is

entitled to the sum of money.

(4) That the court discharge defendant from all liability in the

premises except to the person it shall adjudge entitled to the sum

of money.

(5) That the court award to the defendant its costs and

attorney's fees.

(!1) Rule 13(h) provides for the court ordering parties to a

counterclaim, but who are not parties to the original action, to be

brought in as defendants.

-SOURCE-

(As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT

This form was amended in 1963 by deleting the stated dollar

amount and substituting a blank, to be properly filled in by the

pleader. See Note of Advisory Committee under Form 3.

-End-

-CITE-

28 USC APPENDIX Form 22 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

[Form 22. Eliminated Jan. 21, 1963, eff. July 1, 1963]

-MISC1-

Form 22 for motion to bring in third-party defendant, setting out

as an exhibit summons and third-party complaint, and for notice of

motion, was eliminated Jan. 21, 1963, eff. July 1, 1963, and

superseded by Forms 22-A and 22-B, setting out summons and

complaint against third-party defendant, and motion to bring in

third-party defendant. See Advisory Committee notes under Forms

22-A and 22-B.

-End-

-CITE-

28 USC APPENDIX Form 22-A 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

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

-STATUTE-

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CIVIL ACTION, FILE NUMBER __

<p><img src="http://uscode.house.gov/images/code03/images/28Af22A1.gif" width=576 height=579 alt="Image of item"><p>

To the above-named Third-Party Defendant:

You are hereby summoned and required to serve upon ____,

plaintiff's attorney whose address is ____, and upon ____, who is

attorney for C. D., defendant and third-party plaintiff, and whose

address is ____, an answer to the third-party complaint which is

herewith served upon you within 20 days after the service of this

summons upon you exclusive of the day of service. If you fail to do

so, judgment by default will be taken against you for the relief

demanded in the third-party complaint. There is also served upon

you herewith a copy of the complaint of the plaintiff which you may

but are not required to answer.

____________,

Clerk of Court.

[Seal of District Court]

Dated ____________

United States District Court for the Southern District of New York

Civil Action, File Number __

<p><img src="http://uscode.house.gov/images/code03/images/28Af22A2.gif" width=576 height=579 alt="Image of item"><p>

1. Plaintiff A. B. has filed against defendant C. D. a complaint,

a copy of which is hereto attached as "Exhibit A."

2. (Here state the grounds upon which C. D. is entitled to

recover from E. F., all or part of what A. B. may recover from C.

D. The statement should be framed as in an original complaint.)

Wherefore C. D. demands judgment against third-party defendant E.

F. for all sums (!1) that may be adjudged against defendant C. D.

in favor of plaintiff A. B.

Signed: _________________,

Attorney for C. D., Third-Party Plaintiff.

Address: _________________

(!1) Make appropriate change where C. D. is entitled to only partial

recovery-over against E. F.

-SOURCE-

(As added Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963

Under the amendment of Rule 14(a), a defendant who files a

third-party complaint not later than 10 days after serving his

original answer need not obtain leave of court to bring in the

third-party defendant by service under Rule 4. Form 22-A is

intended for use in these cases.

The changes in the form of summons reflect an earlier amendment

of Rule 14(a), effective in 1948, making it permissive, rather than

mandatory, for the third-party defendant to answer the plaintiff's

complaint. See Cooper v. D/S A/S Progress, 188 F.Supp. 578 (E.D.Pa.

1960); 1A Barron & Holtzoff, Federal Practice and Procedure 696

(Wright ed. 1960).

Under the amendment of Rule 5(a) requiring, with certain

exceptions, that papers be served upon all the parties to the

action, the third-party defendant, even if he makes no answer to

the plaintiff's complaint, is obliged to serve upon the plaintiff a

copy of his answer to the third-party complaint. Similarly, the

defendant is obliged to serve upon the plaintiff a copy of the

summons and complaint against the third-party defendant.

-End-

-CITE-

28 USC APPENDIX Form 22-B 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

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

-STATUTE-

Defendant moves for leave, as third-party plaintiff, to cause to

be served upon E. F. a summons and third-party complaint, copies of

which are hereto attached as Exhibit X.

Signed: ________________,

ATTORNEY FOR DEFENDANT C. D.

Address: _______________

NOTICE OF MOTION

(Contents the same as in Form 19. The notice should be addressed

to all parties to the action.)

EXHIBIT X

(Contents the same as in Form 22-A.)

-SOURCE-

(As added Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1963

Form 22-B is intended for use when, under amended Rule 14(a),

leave of court is required to bring in a third-party defendant.

-End-

-CITE-

28 USC APPENDIX Form 23 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 23. Motion To Intervene as a Defendant Under Rule 24

-STATUTE-

(BASED UPON THE COMPLAINT, FORM 16)

United States District Court for the Southern District of New

York

CIVIL ACTION, FILE NUMBER __

A. B., plaintiff

v.

Motion to inter-

C. D., defendant

] vene as a

E. F., applicant for

defendant

intervention

E. F. moves for leave to intervene as a defendant in this action,

in order to assert the defenses set forth in his proposed answer,

of which a copy is hereto attached, on the ground that he is the

manufacturer and vendor to the defendant, as well as to others, of

the articles alleged in the complaint to be an infringement of

plaintiff's patent, and as such has a defense to plaintiff's claim

presenting both questions of law and of fact which are common to

the main action.(!1)

Signed: ______________,

Attorney for E. F., Applicant for Intervention.

Address: _____________

Notice of Motion

(Contents the same as in Form 19)

(!1) For other grounds of intervention, either of right or in the

discretion of the court, see Rule 24(a) and (b).

United States District Court for the Southern District of New York

Civil Action, File Number __

A. B., plaintiff

v.

C. D., defendant

] Intervener's Answer

E. F., intervener

First Defense

Intervener admits the allegations stated in paragraphs 1 and 4 of

the complaint; denies the allegations in paragraph 3, and denies

the allegations in paragraph 2 in so far as they assert the

legality of the issuance of the Letters Patent to plaintiff.

Second Defense

Plaintiff is not the first inventor of the articles covered by

the Letters Patent specified in his complaint, since articles

substantially identical in character were previously patented in

Letters Patent granted to intervener on January 5, 1920.

Signed: ________________,

Attorney for E. F., Intervener.

Address: _______________

-SOURCE-

(As amended Dec. 29, 1948, eff. Oct. 20, 1949.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT

The change in nomenclature conforms to the official designation

of a district court and of a court of appeals in Title 28, U.S.C.,

Secs. 43(a), 132(a); and the more appropriate reference to "United

States Court House, Foley Square, City of New York" in Form 19

replaces the outmoded reference.

-End-