Legislación
US (United States) Code. Title 28. Appendix 2
APPENDIX OF FORMS
Form
1. Summons.
1A. Notice of Lawsuit and Request for Waiver of Service of
Summons.
1B. Waiver of Service of Summons.
2. Allegation of Jurisdiction.
3. Complaint on a Promissory Note.
4. Complaint on an Account.
5. Complaint for Goods Sold and Delivered.
6. Complaint for Money Lent.
7. Complaint for Money Paid by Mistake.
8. Complaint for Money Had and Received.
9. Complaint for Negligence.
10. Complaint for Negligence Where Plaintiff Is Unable To
Determine Definitely Whether the Person Responsible
Is C.D. or E.F. or Whether Both Are Responsible and
Where His Evidence May Justify a Finding of
Wilfulness or of Recklessness or of Negligence.
11. Complaint for Conversion.
12. Complaint for Specific Performance of Contract To
Convey Land.
13. Complaint on Claim for Debt and To Set Aside
Fraudulent Conveyance Under Rule 18(b).
14. Complaint for Negligence Under Federal Employer's
Liability Act.
15. Complaint for Damages Under Merchant Marine Act.
16. Complaint for Infringement of Patent.
17. Complaint for Infringement of Copyright and Unfair
Competition.
18. Complaint for Interpleader and Declaratory Relief.
[18-A. Abrogated.]
19. Motion To Dismiss, Presenting Defenses of Failure To
State a Claim, of Lack of Service of Process, of
Improper Venue, and of Lack of Jurisdiction Under
Rule 12(b).
20. Answer Presenting Defenses Under Rule 12(b).
21. Answer to Complaint Set Forth in Form 8, With
Counterclaim for Interpleader.
[22. Eliminated.]
22-A. Summons and Complaint Against Third-Party Defendant.
22-B. Motion To Bring in Third-Party Defendant.
23. Motion To Intervene as a Defendant under Rule 24.
24. Request for Production of Documents, etc., Under Rule
34.
25. Request for Admission Under Rule 36.
26. Allegation of Reason for Omitting Party.
[27. Abrogated.]
28. Notice: Condemnation.
29. Complaint: Condemnation.
30. Suggestion of Death Upon the Record Under Rule
25(a)(1).
31. Judgment on Jury Verdict.
32. Judgment on Decision by the Court.
33. Notice of Availability of a Magistrate Judge to
Exercise Jurisdiction.
34. Consent to Exercise of Jurisdiction by a United States
Magistrate Judge.
34A. Order of Reference.
35. Report of Parties' Planning Meeting.
SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS
Rule
A. Scope of Rules.
B. In Personam Actions: Attachment and Garnishment.
(1) When Available; Complaint, Affidavit, Judicial
Authorization, and Process.
(2) Notice to Defendant.
(3) Answer.
(a) By Garnishee.
(b) By Defendant.
C. In Rem Actions: Special Provisions.
(1) When Available.
(2) Complaint.
(3) Judicial Authorization and Process.
(a) Arrest Warrant.
(b) Service.
(c) Deposit in Court.
(d) Supplemental Process.
(4) Notice.
(5) Ancillary Process.
(6) Responsive Pleading; Interrogatories.
(a) Civil Forfeiture.
(b) Maritime Arrests and Other Proceedings.
(c) Interrogatories.
D. Possessory, Petitory, and Partition Actions.
E. Actions in Rem and Quasi in Rem: General Provisions.
(1) Applicability.
(2) Complaint; Security.
(a) Complaint.
(b) Security for Costs.
(3) Process.
(4) Execution of Process; Marshal's Return; Custody
of Property; Procedures for Release.
(a) In General.
(b) Tangible Property.
(c) Intangible Property.
(d) Directions with Respect to Property in
Custody.
(e) Expenses of Seizing and Keeping Property;
Deposit.
(f) Procedure for Release from Arrest or
Attachment.
(5) Release of Property.
(a) Special Bond.
(b) General Bond.
(c) Release by Consent, or Stipulation; Order of
Court or Clerk; Costs.
(d) Possessory, Petitory, and Partition Actions.
(6) Reduction or Impairment of Security.
(7) Security on Counterclaim.
(8) Restricted Appearance.
(9) Disposition of Property; Sales.
(a) Actions for Forfeitures.
(b) Interlocutory Sales; Delivery.
(c) Sales; Proceeds.
(10) Preservation of Property.
F. Limitation of Liability.
(1) Time for Filing Complaint; Security.
(2) Complaint.
(3) Claims Against Owner; Injunction.
(4) Notice to Claimants.
(5) Claims and Answer.
(6) Information To Be Given Claimants.
(7) Insufficiency of Fund or Security.
(8) Objections to Claims: Distribution of Fund.
(9) Venue; Transfer.
The Federal Rules of Civil Procedure supplant the Equity Rules
since in general they cover the field now covered by the Equity
Rules and the Conformity Act (former section 724 of this title).
This table shows the Equity Rules to which references are made in
the notes to the Federal Rules of Civil Procedure.
Equity Rules Federal Rules
of Civil
Procedure
--------------------------------------------------------------------
1 77
2 77
3 79
4 77
5 77
6 78
7 4, 70
8 6, 70
9 70
10 18, 54
11 71
12 3, 4, 5, 12, 55
13 4
14 4
15 4, 45
16 6, 55
17 55
18 7, 8
19 1, 15, 61
20 12
21 11, 12
22 1
23 1, 39
24 11
25 8, 9, 10, 19
26 18, 20, 82
27 23
28 15
29 7, 12, 42, 55
30 8, 13, 82
31 7, 8, 12, 55
32 15
33 7, 12
34 15
35 15
36 11
37 17, 19, 20, 24
38 23
39 19
40 20
41 17
42 19, 20
43 12, 21
44 12, 21
45 25
46 43, 61
47 26
48 43
49 53
50 30, 80
51 30, 53
52 45, 53
53 53
54 26
55 30
56 40
57 40
58 26, 33, 34, 36
59 53
60 53
61 53
61 1/2 53
62 53
63 53
64 26
65 53
66 53
67 53
68 53
69 59
70 17
70 1/2 52
71 54
72 60, 61
73 65
74 62
75 75
76 75
77 76
78 43
79 83
80 6
81 86
--------------------------------------------------------------------
-End-
-CITE-
28 USC APPENDIX I. SCOPE OF RULES - ONE FORM OF
ACTION 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
I. SCOPE OF RULES - ONE FORM OF ACTION
-HEAD-
I. SCOPE OF RULES - ONE FORM OF ACTION
-End-
-CITE-
28 USC APPENDIX Rule 1 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
I. SCOPE OF RULES - ONE FORM OF ACTION
-HEAD-
Rule 1. Scope and Purpose of Rules
-STATUTE-
These rules govern the procedure in the United States district
courts in all suits of a civil nature whether cognizable as cases
at law or in equity or in admiralty, with the exceptions stated in
Rule 81. They shall be construed and administered to secure the
just, speedy, and inexpensive determination of every action.
-SOURCE-
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff.
July 1, 1966; Apr. 22, 1993, eff. Dec. 1, 1993.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
1. Rule 81 states certain limitations in the application of these
rules to enumerated special proceedings.
2. The expression "district courts of the United States"
appearing in the statute authorizing the Supreme Court of the
United States to promulgate rules of civil procedure does not
include the district courts held in the Territories and insular
possessions. See Mookini et al. v. United States, 303 U.S. 201, 58
S.Ct. 543, 82 L.Ed. 748 (1938).
3. These rules are drawn under the authority of the act of June
19, 1934, U.S.C., Title 28, Sec. 723b [see 2072] (Rules in actions
at law; Supreme Court authorized to make), and Sec. 723c [see 2072]
(Union of equity and action at law rules; power of Supreme Court)
and also other grants of rule making power to the Court. See Clark
and Moore, A New Federal Civil Procedure - I. The Background, 44
Yale L.J. 387, 391 (1935). Under Sec. 723b after the rules have
taken effect all laws in conflict therewith are of no further force
or effect. In accordance with Sec. 723c the Court has united the
general rules prescribed for cases in equity with those in actions
at law so as to secure one form of civil action and procedure for
both. See Rule 2 (One Form of Action). For the former practice in
equity and at law see U.S.C., Title 28, Secs. 723 and 730 [see 2071
et seq.] (conferring power on the Supreme Court to make rules of
practice in equity) and the [former] Equity Rules promulgated
thereunder; U.S.C., Title 28, [former] Sec. 724 (Conformity act):
[former] Equity Rule 22 (Action at Law Erroneously Begun as Suit in
Equity - Transfer); [former] Equity Rule 23 (Matters Ordinarily
Determinable at Law When Arising in Suit in Equity to be Disposed
of Therein); U.S.C., Title 28, [former] Secs. 397 (Amendments to
pleadings when case brought to wrong side of court), and 398
(Equitable defenses and equitable relief in actions at law).
4. With the second sentence compare U.S.C., Title 28, [former]
Secs. 777 (Defects of form; amendments), 767 (Amendment of
process); [former] Equity Rule 19 (Amendments Generally).
NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT
The change in nomenclature conforms to the official designation
of district courts in Title 28, U.S.C., Sec. 132(a).
NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT
This is the fundamental change necessary to effect unification of
the civil and admiralty procedure. Just as the 1938 rules abolished
the distinction between actions at law and suits in equity, this
change would abolish the distinction between civil actions and
suits in admiralty. See also Rule 81.
NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT
The purpose of this revision, adding the words "and administered"
to the second sentence, is to recognize the affirmative duty of the
court to exercise the authority conferred by these rules to ensure
that civil litigation is resolved not only fairly, but also without
undue cost or delay. As officers of the court, attorneys share this
responsibility with the judge to whom the case is assigned.
-End-
-CITE-
28 USC APPENDIX Rule 2 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
I. SCOPE OF RULES - ONE FORM OF ACTION
-HEAD-
Rule 2. One Form of Action
-STATUTE-
There shall be one form of action to be known as "civil action."
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
1. This rule modifies U.S.C., Title 28, [former] Sec. 384 (Suits
in equity, when not sustainable). U.S.C., Title 28, Secs. 723 and
730 [see 2071 et seq.] (conferring power on the Supreme Court to
make rules of practice in equity), are unaffected insofar as they
relate to the rule making power in admiralty. These sections,
together with Sec. 723b [see 2072] (Rules in actions at law;
Supreme Court authorized to make) are continued insofar as they are
not inconsistent with Sec. 723c [see 2072] (Union of equity and
action at law rules; power of Supreme Court). See Note 3 to Rule 1.
U.S.C., Title 28, [former] Secs. 724 (Conformity act), 397
(Amendments to pleadings when case brought to wrong side of court)
and 398 (Equitable defenses and equitable relief in actions at law)
are superseded.
2. Reference to actions at law or suits in equity in all statutes
should now be treated as referring to the civil action prescribed
in these rules.
3. This rule follows in substance the usual introductory
statements to code practices which provide for a single action and
mode of procedure, with abolition of forms of action and procedural
distinctions. Representative statutes are N.Y. Code 1848 (Laws
1848, ch. 379) Sec. 62; N.Y.C.P.A. (1937) Sec. 8; Calif.Code
Civ.Proc. (Deering, 1937) Sec. 307; 2 Minn.Stat. (Mason, 1927) Sec.
9164; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Secs. 153, 255.
-End-
-CITE-
28 USC APPENDIX II. COMMENCEMENT OF ACTION;
SERVICE OF PROCESS, PLEADINGS, MOTIONS,
AND ORDERS 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
AND ORDERS
-HEAD-
II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
AND ORDERS
-End-
-CITE-
28 USC APPENDIX Rule 3 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
AND ORDERS
-HEAD-
Rule 3. Commencement of Action
-STATUTE-
A civil action is commenced by filing a complaint with the court.
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
1. Rule 5(e) defines what constitutes filing with the court.
2. This rule governs the commencement of all actions, including
those brought by or against the United States or an officer or
agency thereof, regardless of whether service is to be made
personally pursuant to Rule 4(d), or otherwise pursuant to Rule
4(e).
3. With this rule compare [former] Equity Rule 12 (Issue of
Subpoena - Time for Answer) and the following statutes (and other
similar statutes) which provide a similar method for commencing an
action:
U.S.C., Title 28:
Sec. 45 [former] (District courts; practice and procedure in
certain cases under interstate commerce laws).
Sec. 762 [see 1402] (Petition in suit against United States).
Sec. 766 [see 2409] (Partition suits where United States is tenant
in common or joint tenant).
4. This rule provides that the first step in an action is the
filing of the complaint. Under Rule 4(a) this is to be followed
forthwith by issuance of a summons and its delivery to an officer
for service. Other rules providing for dismissal for failure to
prosecute suggest a method available to attack unreasonable delay
in prosecuting an action after it has been commenced. When a
Federal or State statute of limitations is pleaded as a defense, a
question may arise under this rule whether the mere filing of the
complaint stops the running of the statute, or whether any further
step is required, such as, service of the summons and complaint or
their delivery to the marshal for service. The answer to this
question may depend on whether it is competent for the Supreme
Court, exercising the power to make rules of procedure without
affecting substantive rights, to vary the operation of statutes of
limitations. The requirement of Rule 4(a) that the clerk shall
forthwith issue the summons and deliver it to the marshal for
service will reduce the chances of such a question arising.
-End-
-CITE-
28 USC APPENDIX Rule 4 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
AND ORDERS
-HEAD-
Rule 4. Summons
-STATUTE-
(a) Form. The summons shall be signed by the clerk, bear the seal
of the court, identify the court and the parties, be directed to
the defendant, and state the name and address of the plaintiff's
attorney or, if unrepresented, of the plaintiff. It shall also
state the time within which the defendant must appear and defend,
and notify the defendant that failure to do so will result in a
judgment by default against the defendant for the relief demanded
in the complaint. The court may allow a summons to be amended.
(b) Issuance. Upon or after filing the complaint, the plaintiff
may present a summons to the clerk for signature and seal. If the
summons is in proper form, the clerk shall sign, seal, and issue it
to the plaintiff for service on the defendant. A summons, or a copy
of the summons if addressed to multiple defendants, shall be issued
for each defendant to be served.
(c) Service with Complaint; by Whom Made.
(1) A summons shall be served together with a copy of the
complaint. The plaintiff is responsible for service of a summons
and complaint within the time allowed under subdivision (m) and
shall furnish the person effecting service with the necessary
copies of the summons and complaint.
(2) Service may be effected by any person who is not a party
and who is at least 18 years of age. At the request of the
plaintiff, however, the court may direct that service be effected
by a United States marshal, deputy United States marshal, or
other person or officer specially appointed by the court for that
purpose. Such an appointment must be made when the plaintiff is
authorized to proceed in forma pauperis pursuant to 28 U.S.C.
Sec. 1915 or is authorized to proceed as a seaman under 28 U.S.C.
Sec. 1916.
(d) Waiver of Service; Duty to Save Costs of Service; Request to
Waive.
(1) A defendant who waives service of a summons does not
thereby waive any objection to the venue or to the jurisdiction
of the court over the person of the defendant.
(2) An individual, corporation, or association that is subject
to service under subdivision (e), (f), or (h) and that receives
notice of an action in the manner provided in this paragraph has
a duty to avoid unnecessary costs of serving the summons. To
avoid costs, the plaintiff may notify such a defendant of the
commencement of the action and request that the defendant waive
service of a summons. The notice and request
(A) shall be in writing and shall be addressed directly to
the defendant, if an individual, or else to an officer or
managing or general agent (or other agent authorized by
appointment or law to receive service of process) of a
defendant subject to service under subdivision (h);
(B) shall be dispatched through first-class mail or other
reliable means;
(C) shall be accompanied by a copy of the complaint and shall
identify the court in which it has been filed;
(D) shall inform the defendant, by means of a text prescribed
in an official form promulgated pursuant to Rule 84, of the
consequences of compliance and of a failure to comply with the
request;
(E) shall set forth the date on which the request is sent;
(F) shall allow the defendant a reasonable time to return the
waiver, which shall be at least 30 days from the date on which
the request is sent, or 60 days from that date if the defendant
is addressed outside any judicial district of the United
States; and
(G) shall provide the defendant with an extra copy of the
notice and request, as well as a prepaid means of compliance in
writing.
If a defendant located within the United States fails to comply
with a request for waiver made by a plaintiff located within the
United States, the court shall impose the costs subsequently
incurred in effecting service on the defendant unless good cause
for the failure be shown.
(3) A defendant that, before being served with process, timely
returns a waiver so requested is not required to serve an answer
to the complaint until 60 days after the date on which the
request for waiver of service was sent, or 90 days after that
date if the defendant was addressed outside any judicial district
of the United States.
(4) When the plaintiff files a waiver of service with the
court, the action shall proceed, except as provided in paragraph
(3), as if a summons and complaint had been served at the time of
filing the waiver, and no proof of service shall be required.
(5) The costs to be imposed on a defendant under paragraph (2)
for failure to comply with a request to waive service of a
summons shall include the costs subsequently incurred in
effecting service under subdivision (e), (f), or (h), together
with the costs, including a reasonable attorney's fee, of any
motion required to collect the costs of service.
(e) Service Upon Individuals Within a Judicial District of the
United States. Unless otherwise provided by federal law, service
upon an individual from whom a waiver has not been obtained and
filed, other than an infant or an incompetent person, may be
effected in any judicial district of the United States:
(1) pursuant to the law of the state in which the district
court is located, or in which service is effected, for the
service of a summons upon the defendant in an action brought in
the courts of general jurisdiction of the State; or
(2) by delivering a copy of the summons and of the complaint to
the individual personally or by leaving copies thereof at the
individual's dwelling house or usual place of abode with some
person of suitable age and discretion then residing therein or by
delivering a copy of the summons and of the complaint to an agent
authorized by appointment or by law to receive service of
process.
(f) Service Upon Individuals in a Foreign Country. Unless
otherwise provided by federal law, service upon an individual from
whom a waiver has not been obtained and filed, other than an infant
or an incompetent person, may be effected in a place not within any
judicial district of the United States:
(1) by any internationally agreed means reasonably calculated
to give notice, such as those means authorized by the Hague
Convention on the Service Abroad of Judicial and Extrajudicial
Documents; or
(2) if there is no internationally agreed means of service or
the applicable international agreement allows other means of
service, provided that service is reasonably calculated to give
notice:
(A) in the manner prescribed by the law of the foreign
country for service in that country in an action in any of its
courts of general jurisdiction; or
(B) as directed by the foreign authority in response to a
letter rogatory or letter of request; or
(C) unless prohibited by the law of the foreign country, by
(i) delivery to the individual personally of a copy of the
summons and the complaint; or
(ii) any form of mail requiring a signed receipt, to be
addressed and dispatched by the clerk of the court to the
party to be served; or
(3) by other means not prohibited by international agreement as
may be directed by the court.
(g) Service Upon Infants and Incompetent Persons. Service upon an
infant or an incompetent person in a judicial district of the
United States shall be effected in the manner prescribed by the law
of the state in which the service is made for the service of
summons or other like process upon any such defendant in an action
brought in the courts of general jurisdiction of that state.
Service upon an infant or an incompetent person in a place not
within any judicial district of the United States shall be effected
in the manner prescribed by paragraph (2)(A) or (2)(B) of
subdivision (f) or by such means as the court may direct.
(h) Service Upon Corporations and Associations. Unless otherwise
provided by federal law, service upon a domestic or foreign
corporation or upon a partnership or other unincorporated
association that is subject to suit under a common name, and from
which a waiver of service has not been obtained and filed, shall be
effected:
(1) in a judicial district of the United States in the manner
prescribed for individuals by subdivision (e)(1), or by
delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive service of process
and, if the agent is one authorized by statute to receive service
and the statute so requires, by also mailing a copy to the
defendant, or
(2) in a place not within any judicial district of the United
States in any manner prescribed for individuals by subdivision
(f) except personal delivery as provided in paragraph (2)(C)(i)
thereof.
(i) Serving the United States, Its Agencies, Corporations,
Officers, or Employees.
(1) Service upon the United States shall be effected
(A) by delivering a copy of the summons and of the complaint
to the United States attorney for the district in which the
action is brought or to an assistant United States attorney or
clerical employee designated by the United States attorney in a
writing filed with the clerk of the court or by sending a copy
of the summons and of the complaint by registered or certified
mail addressed to the civil process clerk at the office of the
United States attorney and
(B) by also sending a copy of the summons and of the
complaint by registered or certified mail to the Attorney
General of the United States at Washington, District of
Columbia, and
(C) in any action attacking the validity of an order of an
officer or agency of the United States not made a party, by
also sending a copy of the summons and of the complaint by
registered or certified mail to the officer or agency.
(2)(A) Service on an agency or corporation of the United
States, or an officer or employee of the United States sued only
in an official capacity, is effected by serving the United States
in the manner prescribed by Rule 4(i)(1) and by also sending a
copy of the summons and complaint by registered or certified mail
to the officer, employee, agency, or corporation.
(B) Service on an officer or employee of the United States sued
in an individual capacity for acts or omissions occurring in
connection with the performance of duties on behalf of the United
States - whether or not the officer or employee is sued also in
an official capacity - is effected by serving the United States
in the manner prescribed by Rule 4(i)(1) and by serving the
officer or employee in the manner prescribed by Rule 4(e), (f),
or (g).
(3) The court shall allow a reasonable time to serve process
under Rule 4(i) for the purpose of curing the failure to serve:
(A) all persons required to be served in an action governed
by Rule 4(i)(2)(A), if the plaintiff has served either the
United States attorney or the Attorney General of the United
States, or
(B) the United States in an action governed by Rule
4(i)(2)(B), if the plaintiff has served an officer or employee
of the United States sued in an individual capacity.
(j) Service Upon Foreign, State, or Local Governments.
(1) Service upon a foreign state or a political subdivision,
agency, or instrumentality thereof shall be effected pursuant to
28 U.S.C. Sec. 1608.
(2) Service upon a state, municipal corporation, or other
governmental organization subject to suit shall be effected by
delivering a copy of the summons and of the complaint to its
chief executive officer or by serving the summons and complaint
in the manner prescribed by the law of that state for the service
of summons or other like process upon any such defendant.
(k) Territorial Limits of Effective Service.
(1) Service of a summons or filing a waiver of service is
effective to establish jurisdiction over the person of a
defendant
(A) who could be subjected to the jurisdiction of a court of
general jurisdiction in the state in which the district court
is located, or
(B) who is a party joined under Rule 14 or Rule 19 and is
served at a place within a judicial district of the United
States and not more than 100 miles from the place from which
the summons issues, or
(C) who is subject to the federal interpleader jurisdiction
under 28 U.S.C. Sec. 1335, or
(D) when authorized by a statute of the United States.
(2) If the exercise of jurisdiction is consistent with the
Constitution and laws of the United States, serving a summons or
filing a waiver of service is also effective, with respect to
claims arising under federal law, to establish personal
jurisdiction over the person of any defendant who is not subject
to the jurisdiction of the courts of general jurisdiction of any
state.
(l) Proof of Service. If service is not waived, the person
effecting service shall make proof thereof to the court. If service
is made by a person other than a United States marshal or deputy
United States marshal, the person shall make affidavit thereof.
Proof of service in a place not within any judicial district of the
United States shall, if effected under paragraph (1) of subdivision
(f), be made pursuant to the applicable treaty or convention, and
shall, if effected under paragraph (2) or (3) thereof, include a
receipt signed by the addressee or other evidence of delivery to
the addressee satisfactory to the court. Failure to make proof of
service does not affect the validity of the service. The court may
allow proof of service to be amended.
(m) Time Limit for Service. If service of the summons and
complaint is not made upon a defendant within 120 days after the
filing of the complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss the action
without prejudice as to that defendant or direct that service be
effected within a specified time; provided that if the plaintiff
shows good cause for the failure, the court shall extend the time
for service for an appropriate period. This subdivision does not
apply to service in a foreign country pursuant to subdivision (f)
or (j)(1).
(n) Seizure of Property; Service of Summons Not Feasible.
(1) If a statute of the United States so provides, the court
may assert jurisdiction over property. Notice to claimants of the
property shall then be sent in the manner provided by the statute
or by service of a summons under this rule.
(2) Upon a showing that personal jurisdiction over a defendant
cannot, in the district where the action is brought, be obtained
with reasonable efforts by service of summons in any manner
authorized by this rule, the court may assert jurisdiction over
any of the defendant's assets found within the district by
seizing the assets under the circumstances and in the manner
provided by the law of the state in which the district court is
located.
-SOURCE-
(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff.
July 1, 1966; Apr. 29, 1980, eff. Aug. 1, 1980; Pub. L. 97-462,
Sec. 2, Jan. 12, 1983, 96 Stat. 2527; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1,
2000.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
Note to Subdivision (a). With the provision permitting additional
summons upon request of the plaintiff compare [former] Equity Rule
14 (Alias Subpoena) and the last sentence of [former] Equity Rule
12 (Issue of Subpoena - Time for Answer).
Note to Subdivision (b). This rule prescribes a form of summons
which follows substantially the requirements stated in [former]
Equity Rules 12 (Issue of Subpoena - Time for Answer) and 7
(Process, Mesne and Final).
U.S.C., Title 28, Sec. 721 [now 1691] (Sealing and testing of
writs) is substantially continued insofar as it applies to a
summons, but its requirements as to teste of process are
superseded. U.S.C., Title 28, [former] Sec. 722 (Teste of process,
day of), is superseded.
See Rule 12(a) for a statement of the time within which the
defendant is required to appear and defend.
Note to Subdivision (c). This rule does not affect U.S.C., Title
28, Sec. 503 [see 566], as amended June 15, 1935 (Marshals; duties)
and such statutes as the following insofar as they provide for
service of process by a marshal, but modifies them insofar as they
may imply service by a marshal only:
U.S.C., Title 15:
Sec. 5 (Bringing in additional parties) (Sherman Act)
Sec. 10 (Bringing in additional parties)
Sec. 25 (Restraining violations; procedure)
U.S.C., Title 28:
Sec. 45 [former] (Practice and procedure in certain cases under
the interstate commerce laws)
Compare [former] Equity Rule 15 (Process, by Whom Served).
Note to Subdivision (d). Under this rule the complaint must
always be served with the summons.
Paragraph (1). For an example of a statute providing for service
upon an agent of an individual see U.S.C., Title 28, Sec. 109 [now
1400, 1694] (Patent cases).
Paragraph (3). This enumerates the officers and agents of a
corporation or of a partnership or other unincorporated association
upon whom service of process may be made, and permits service of
process only upon the officers, managing or general agents, or
agents authorized by appointment or by law, of the corporation,
partnership or unincorporated association against which the action
is brought. See Christian v. International Ass'n of Machinists, 7
F.(2d) 481 (D.C.Ky., 1925) and Singleton v. Order of Railway
Conductors of America, 9 F.Supp. 417 (D.C.Ill., 1935). Compare
Operative Plasterers' and Cement Finishers' International Ass'n of
the United States and Canada v. Case, 93 F.(2d) 56 (App.D.C.,
1937).
For a statute authorizing service upon a specified agent and
requiring mailing to the defendant, see U.S.C., Title 6, Sec. 7
[now Title 31, Sec. 9306] (Surety companies as sureties;
appointment of agents; service of process).
Paragraphs (4) and (5) provide a uniform and comprehensive method
of service for all actions against the United States or an officer
or agency thereof. For statutes providing for such service, see
U.S.C., Title 7, Secs. 217 (Proceedings for suspension of orders),
499k (Injunctions; application of injunction laws governing orders
of Interstate Commerce Commission), 608c(15)(B) (Court review of
ruling of Secretary of Agriculture), and 855 (making Sec.
608c(15)(B) applicable to orders of the Secretary of Agriculture as
to handlers of anti-hog-cholera serum and hog-cholera virus);
U.S.C., Title 26, [former] Sec. 1569 (Bill in chancery to clear
title to realty on which the United States has a lien for taxes);
U.S.C., Title 28, [former] Secs. 45 (District Courts; practice and
procedure in certain cases under the interstate commerce laws),
[former] 763 (Petition in suit against the United States; service;
appearance by district attorney), 766 [now 2409] (Partition suits
where United States is tenant in common or joint tenant), 902 [now
2410] (Foreclosure of mortgages or other liens on property in which
the United States has an interest). These and similar statutes are
modified insofar as they prescribe a different method of service or
dispense with the service of a summons.
For the [former] Equity Rule on service, see [former] Equity Rule
13 (Manner of Serving Subpoena).
Note to Subdivision (e). The provisions for the service of a
summons or of notice or of an order in lieu of summons contained in
U.S.C., Title 8, Sec. 405 [see 1451] (Cancellation of certificates
of citizenship fraudulently or illegally procured) (service by
publication in accordance with State law); U.S.C., Title 28, Sec.
118 [now 1655] (Absent defendants in suits to enforce liens);
U.S.C., Title 35, Sec. 72a [now 146, 291] (Jurisdiction of District
Court of United States for the District of Columbia in certain
equity suits where adverse parties reside elsewhere) (service by
publication against parties residing in foreign countries); U.S.C.,
Title 38, Sec. 445 [now 1984] (Action against the United States on
a veteran's contract of insurance) (parties not inhabitants of or
not found within the District may be served with an order of the
court, personally or by publication) and similar statutes are
continued by this rule. Title 24, Sec. 378 [now Title 13, Sec. 336]
of the Code of the District of Columbia (Publication against
nonresident; those absent for six months; unknown heirs or
devisees; for divorce or in rem; actual service beyond District) is
continued by this rule.
Note to Subdivision (f). This rule enlarges to some extent the
present rule as to where service may be made. It does not, however,
enlarge the jurisdiction of the district courts.
U.S.C., Title 28, Secs. 113 [now 1392] (Suits in States
containing more than one district) (where there are two or more
defendants residing in different districts), [former] 115 (Suits of
a local nature), 116 [now 1392] (Property in different districts in
same State), [former] 838 (Executions run in all districts of
State); U.S.C., Title 47, Sec. 13 (Action for damages against a
railroad or telegraph company whose officer or agent in control of
a telegraph line refuses or fails to operate such line in a certain
manner - "upon any agent of the company found in such state");
U.S.C., Title 49, Sec. 321(c) [see 13304(a)] (Requiring designation
of a process agent by interstate motor carriers and in case of
failure so to do, service may be made upon any agent in the State)
and similar statutes, allowing the running of process throughout a
State, are substantially continued.
U.S.C., Title 15, Secs. 5 (Bringing in additional parties)
(Sherman Act), 25 (Restraining violations; procedure); U.S.C.,
Title 28, Secs. 44 [now 2321] (Procedure in certain cases under
interstate commerce laws; service of processes of court), 117 [now
754, 1692] (Property in different States in same circuit;
jurisdiction of receiver), 839 [now 2413] (Executions; run in every
State and Territory) and similar statutes, providing for the
running of process beyond the territorial limits of a State, are
expressly continued.
Note to Subdivision (g). With the second sentence compare
[former] Equity Rule 15 (Process, by Whom Served).
Note to Subdivision (h). This rule substantially continues
U.S.C., Title 28, [former] Sec. 767 (Amendment of process).
NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT
Subdivision (b). Under amended subdivision (e) of this rule, an
action may be commenced against a nonresident of the State in which
the district court is held by complying with State procedures.
Frequently the form of the summons or notice required in these
cases by State law differs from the Federal form of summons
described in present subdivision (b) and exemplified in Form 1. To
avoid confusion, the amendment of subdivision (b) states that a
form of summons or notice, corresponding "as nearly as may be" to
the State form, shall be employed. See also a corresponding
amendment of Rule 12(a) with regard to the time to answer.
Subdivision (d)(4). This paragraph, governing service upon the
United States, is amended to allow the use of certified mail as an
alternative to registered mail for sending copies of the papers to
the Attorney General or to a United States officer or agency. Cf.
N.J. Rule 4:5-2. See also the amendment of Rule 30(f)(1).
Subdivision (d)(7). Formerly a question was raised whether this
paragraph, in the context of the rule as a whole, authorized
service in original Federal actions pursuant to State statutes
permitting service on a State official as a means of bringing a
nonresident motorist defendant into court. It was argued in McCoy
v. Siler, 205 F.2d 498, 501-2 (3d Cir.) (concurring opinion), cert.
denied, 346 U.S. 872, 74 S.Ct. 120, 98 L.Ed. 380 (1953), that the
effective service in those cases occurred not when the State
official was served but when notice was given to the defendant
outside the State, and that subdivision (f) (Territorial limits of
effective service), as then worded, did not authorize out-of-State
service. This contention found little support. A considerable
number of cases held the service to be good, either by fixing upon
the service on the official within the State as the effective
service, thus satisfying the wording of subdivision (f) as it then
stood, see Holbrook v. Cafiero, 18 F.R.D. 218 (D.Md. 1955);
Pasternack v. Dalo, 17 F.R.D. 420; (W.D.Pa. 1955); cf. Super Prods.
Corp. v. Parkin, 20 F.R.D. 377 (S.D.N.Y. 1957), or by reading
paragraph (7) as not limited by subdivision (f). See Griffin v.
Ensign, 234 F.2d 307 (3d Cir. 1956); 2 Moore's Federal Practice,
¶ 4.19 (2d ed. 1948); 1 Barron & Holtzoff, Federal Practice &
Procedure Sec. 182.1 (Wright ed. 1960); Comment, 27 U. of
Chi.L.Rev. 751 (1960). See also Olberding v. Illinois Central R.R.,
201 F.2d 582 (6th Cir.), rev'd on other grounds, 346 U.S. 338, 74
S.Ct. 83, 98 L.Ed. 39 (1953); Feinsinger v. Bard, 195 F.2d 45 (7th
Cir. 1952).
An important and growing class of State statutes base personal
jurisdiction over nonresidents on the doing of acts or on other
contacts within the State, and permit notice to be given the
defendant outside the State without any requirement of service on a
local State official. See, e.g., Ill.Ann.Stat. ch. 110, Secs. 16,
17 (Smith-Hurd 1956); Wis.Stat. Sec. 262.06 (1959). This service,
employed in original Federal actions pursuant to paragraph (7), has
also been held proper. See Farr & Co. v. Cia. Intercontinental de
Nav. de Cuba, 243 F.2d 342 (2d Cir. 1957); Kappus v. Western Hills
Oil, Inc., 24 F.R.D. 123 (E.D.Wis. 1959); Star v. Rogalny, 162
F.Supp. 181 (E.D.Ill. 1957). It has also been held that the clause
of paragraph (7) which permits service "in the manner prescribed by
the law of the state," etc., is not limited by subdivision (c)
requiring that service of all process be made by certain designated
persons. See Farr & Co. v. Cia. Intercontinental de Nav. de Cuba,
supra. But cf. Sappia v. Lauro Lines, 130 F.Supp. 810 (S.D.N.Y.
1955).
The salutary results of these cases are intended to be preserved.
See paragraph (7), with a clarified reference to State law, and
amended subdivisions (e) and (f).
Subdivision (e). For the general relation between subdivisions
(d) and (e), see 2 Moore, supra, ¶ 4.32.
The amendment of the first sentence inserting the word
"thereunder" supports the original intention that the "order of
court" must be authorized by a specific United States statute. See
1 Barron & Holtzoff, supra, at 731. The clause added at the end of
the first sentence expressly adopts the view taken by commentators
that, if no manner of service is prescribed in the statute or
order, the service may be made in a manner stated in Rule 4. See 2
Moore, supra, ¶ 4.32, at 1004; Smit, International Aspects of
Federal Civil Procedure, 61 Colum.L.Rev. 1031, 1036-39 (1961). But
see Commentary, 5 Fed. Rules Serv. 791 (1942).
Examples of the statutes to which the first sentence relates are
28 U.S.C. Sec. 2361 (Interpleader; process and procedure); 28
U.S.C. Sec. 1655 (Lien enforcement; absent defendants).
The second sentence, added by amendment, expressly allows resort
in original Federal actions to the procedures provided by State law
for effecting service on nonresident parties (as well as on
domiciliaries not found within the State). See, as illustrative,
the discussion under amended subdivision (d)(7) of service pursuant
to State nonresident motorist statutes and other comparable State
statutes. Of particular interest is the change brought about by the
reference in this sentence to State procedures for commencing
actions against nonresidents by attachment and the like,
accompanied by notice. Although an action commenced in a State
court by attachment may be removed to the Federal court if ordinary
conditions for removal are satisfied, see 28 U.S.C. Sec. 1450;
Rorick v. Devon Syndicate, Ltd., 307 U.S. 299, 59 S.Ct. 877, 83
L.Ed. 1303 (1939); Clark v. Wells, 203 U.S. 164, 27 S.Ct. 43, 51
L.Ed. 138 (1906), there has heretofore been no provision recognized
by the courts for commencing an original Federal civil action by
attachment. See Currie, Attachment and Garnishment in the Federal
Courts, 59 Mich.L.Rev. 337 (1961), arguing that this result came
about through historical anomaly. Rule 64, which refers to
attachment, garnishment, and similar procedures under State law,
furnishes only provisional remedies in actions otherwise validly
commenced. See Big Vein Coal Co. v. Read, 229 U.S. 31, 33 S.Ct.
694, 57 L.Ed. 1953 (1913); Davis v. Ensign-Bickford Co., 139 F.2d
624 (8th Cir. 1944); 7 Moore's Federal Practice ¶ 64.05 (2d
ed. 1954); 3 Barron & Holtzoff, Federal Practice & Procedure Sec.
1423 (Wright ed. 1958); but cf. Note, 13 So.Calif.L.Rev. 361
(1940). The amendment will now permit the institution of original
Federal actions against nonresidents through the use of familiar
State procedures by which property of these defendants is brought
within the custody of the court and some appropriate service is
made up them.
The necessity of satisfying subject-matter jurisdictional
requirements and requirements of venue will limit the practical
utilization of these methods of effecting service. Within those
limits, however, there appears to be no reason for denying
plaintiffs means of commencing actions in Federal courts which are
generally available in the State courts. See 1 Barron & Holtzoff,
supra, at 374-80; Nordbye, Comments on Proposed Amendments to Rules
of Civil Procedure for the United States District Courts, 18 F.R.D.
105, 106 (1956); Note, 34 Corn.L.Q. 103 (1948); Note, 13
So.Calif.L.Rev. 361 (1940).
If the circumstances of a particular case satisfy the applicable
Federal law (first sentence of Rule 4(e), as amended) and the
applicable State law (second sentence), the party seeking to make
the service may proceed under the Federal or the State law, at his
option.
See also amended Rule 13(a), and the Advisory Committee's Note
thereto.
Subdivision (f). The first sentence is amended to assure the
effectiveness of service outside the territorial limits of the
State in all the cases in which any of the rules authorize service
beyond those boundaries. Besides the preceding provisions of Rule
4, see Rule 71A(d)(3). In addition, the new second sentence of the
subdivision permits effective service within a limited area outside
the State in certain special situations, namely, to bring in
additional parties to a counterclaim or cross-claim (Rule 13(h)),
impleaded parties (Rule 14), and indispensable or conditionally
necessary parties to a pending action (Rule 19); and to secure
compliance with an order of commitment for civil contempt. In those
situations effective service can be made at points not more than
100 miles distant from the courthouse in which the action is
commenced, or to which it is assigned or transferred for trial.
The bringing in of parties under the 100-mile provision in the
limited situations enumerated is designed to promote the objective
of enabling the court to determine entire controversies. In the
light of present-day facilities for communication and travel, the
territorial range of the service allowed, analogous to that which
applies to the service of a subpoena under Rule 45(e)(1), can
hardly work hardship on the parties summoned. The provision will be
especially useful in metropolitan areas spanning more than one
State. Any requirements of subject-matter jurisdiction and venue
will still have to be satisfied as to the parties brought in,
although these requirements will be eased in some instances when
the parties can be regarded as "ancillary." See Pennsylvania R.R.
v. Erie Avenue Warehouse Co., 5 F.R.Serv.2d 14a.62, Case 2 (3d Cir.
1962); Dery v. Wyer, 265 F.2d 804 (2d Cir. 1959); United Artists
Corp. v. Masterpiece Productions, Inc., 221 F.2d 213 (2d Cir.
1955); Lesnik v. Public Industrials Corp., 144 F.2d 968 (2d Cir.
1944); Vaughn v. Terminal Transp. Co., 162 F.Supp. 647 (E.D.Tenn.
1957); and compare the fifth paragraph of the Advisory Committee's
Note to Rule 4(e), as amended. The amendment is but a moderate
extension of the territorial reach of Federal process and has ample
practical justification. See 2 Moore, supra. Sec. 4.01[13] (Supp.
1960); 1 Barron & Holtzoff, supra, Sec. 184; Note, 51 Nw.U.L.Rev.
354 (1956). But cf. Nordbye, Comments on Proposed Amendments to
Rules of Civil Procedure for the United States District Courts, 18
F.R.D. 105, 106 (1956).
As to the need for enlarging the territorial area in which orders
of commitment for civil contempt may be served, see Graber v.
Graber, 93 F.Supp. 281 (D.D.C. 1950); Teele Soap Mfg. Co. v. Pine
Tree Products Co., Inc., 8 F.Supp. 546 (D.N.H. 1934); Mitchell v.
Dexter, 244 Fed. 926 (1st Cir. 1917); in re Graves, 29 Fed. 60
(N.D. Iowa 1886).
As to the Court's power to amend subdivisions (e) and (f) as here
set forth, see Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 66
S.Ct. 242, 90 L.Ed. 185 (1946).
Subdivision (i). The continual increase of civil litigation
having international elements makes it advisable to consolidate,
amplify, and clarify the provisions governing service upon parties
in foreign countries. See generally Jones, International Judicial
Assistance: Procedural Chaos and a Program for Reform, 62 Yale L.J.
515 (1953); Longley, Serving Process, Subpoenas and Other Documents
in Foreign Territory, Proc. A.B.A., Sec. Int'l & Comp. L. 34
(1959); Smit, International Aspects of Federal Civil Procedure, 61
Colum.L.Rev. 1031 (1961).
As indicated in the opening lines of new subdivision (i),
referring to the provisions of subdivision (e), the authority for
effecting foreign service must be found in a statute of the United
States or a statute or rule of court of the State in which the
district court is held providing in terms or upon proper
interpretation for service abroad upon persons not inhabitants of
or found within the State. See the Advisory Committee's Note to
amended Rule 4(d)(7) and Rule 4(e). For examples of Federal and
State statutes expressly authorizing such service, see 8 U.S.C.
Sec. 1451(b); 35 U.S.C. Secs. 146, 293; Me.Rev.Stat., ch. 22, Sec.
70 (Supp. 1961); Minn.Stat.Ann. Sec. 303.13 (1947); N.Y.Veh. &
Tfc.Law Sec. 253. Several decisions have construed statutes to
permit service in foreign countries, although the matter is not
expressly mentioned in the statutes. See, e.g., Chapman v. Superior
Court, 162 Cal.App.2d 421, 328 P.2d 23 (Dist.Ct.App. 1958); Sperry
v. Fliegers, 194 Misc. 438, 86 N.Y.S.2d 830 (Sup.Ct. 1949); Ewing
v. Thompson, 233 N.C. 564, 65 S.E.2d 17 (1951); Rushing v. Bush,
260 S.W.2d 900 (Tex.Ct.Civ.App. 1953). Federal and State statutes
authorizing service on nonresidents in such terms as to warrant the
interpretation that service abroad is permissible include 15 U.S.C.
Secs. 77v(a), 78aa, 79y; 28 U.S.C. Sec. 1655; 38 U.S.C. Sec.
784(a); Ill.Ann.Stat. ch. 110, Secs. 16, 17 (Smith-Hurd 1956);
Wis.Stat. Sec. 262.06 (1959).
Under subdivisions (e) and (i), when authority to make foreign
service is found in a Federal statute or statute or rule of court
of a State, it is always sufficient to carry out the service in the
manner indicated therein. Subdivision (i) introduces considerable
further flexibility by permitting the foreign service and return
thereof to be carried out in any of a number of other alternative
ways that are also declared to be sufficient. Other aspects of
foreign service continue to be governed by the other provisions of
Rule 4. Thus, for example, subdivision (i) effects no change in the
form of the summons, or the issuance of separate or additional
summons, or the amendment of service.
Service of process beyond the territorial limits of the United
States may involve difficulties not encountered in the case of
domestic service. Service abroad may be considered by a foreign
country to require the performance of judicial, and therefore
"sovereign," acts within its territory, which that country may
conceive to be offensive to its policy or contrary to its law. See
Jones, supra, at 537. For example, a person not qualified to serve
process according to the law of the foreign country may find
himself subject to sanctions if he attempts service therein. See
Inter-American Judicial Committee, Report on Uniformity of
Legislation on International Cooperation in Judicial Procedures 20
(1952). The enforcement of a judgment in the foreign country in
which the service was made may be embarrassed or prevented if the
service did not comport with the law of that country. See ibid.
One of the purposes of subdivision (i) is to allow accommodation
to the policies and procedures of the foreign country. It is
emphasized, however, that the attitudes of foreign countries vary
considerably and that the question of recognition of United States
judgments abroad is complex. Accordingly, if enforcement is to be
sought in the country of service, the foreign law should be
examined before a choice is made among the methods of service
allowed by subdivision (i).
Subdivision (i)(1). Subparagraph (a) of paragraph (1), permitting
service by the method prescribed by the law of the foreign country
for service on a person in that country in a civil action in any of
its courts of general jurisdiction, provides an alternative that is
likely to create least objection in the place of service and also
is likely to enhance the possibilities of securing ultimate
enforcement of the judgment abroad. See Report on Uniformity of
Legislation on International Cooperation in Judicial Procedures,
supra.
In certain foreign countries service in aid of litigation pending
in other countries can lawfully be accomplished only upon request
to the foreign court, which in turn directs the service to be made.
In many countries this has long been a customary way of
accomplishing the service. See In re Letters Rogatory out of First
Civil Court of City of Mexico, 261 Fed. 652 (S.D.N.Y. 1919); Jones,
supra, at 543; Comment, 44 Colum.L.Rev. 72 (1944); Note, 58 Yale
L.J. 1193 (1949). Subparagraph (B) of paragraph (1), referring to a
letter rogatory, validates this method. A proviso, applicable to
this subparagraph and the preceding one, requires, as a safeguard,
that the service made shall be reasonably calculated to give actual
notice of the proceedings to the party. See Milliken v. Meyer, 311
U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940).
Subparagraph (C) of paragraph (1), permitting foreign service by
personal delivery on individuals and corporations, partnerships,
and associations, provides for a manner of service that is not only
traditionally preferred, but also is most likely to lead to actual
notice. Explicit provision for this manner of service was thought
desirable because a number of Federal and State statutes permitting
foreign service do not specifically provide for service by personal
delivery abroad, see e.g., 35 U.S.C. Secs. 146, 293; 46 [App.]
U.S.C. Sec. 1292; Calif.Ins.Code Sec. 1612; N.Y.Veh. & Tfc.Law Sec.
253, and it also may be unavailable under the law of the country in
which the service is made.
Subparagraph (D) of paragraph (1), permitting service by certain
types of mail, affords a manner of service that is inexpensive and
expeditious, and requires a minimum of activity within the foreign
country. Several statutes specifically provide for service in a
foreign country by mail, e.g., Hawaii Rev.Laws Secs. 230-31, 230-32
(1955); Minn.Stat.Ann. Sec. 303.13 (1947); N.Y.Civ.Prac.Act, Sec.
229-b; N.Y.Veh. & Tfc.Law Sec. 253, and it has been sanctioned by
the courts even in the absence of statutory provision specifying
that form of service. Zurini v. United States, 189 F.2d 722 (8th
Cir. 1951); United States v. Cardillo, 135 F.Supp. 798 (W.D.Pa.
1955); Autogiro Co. v. Kay Gyroplanes, Ltd., 55 F.Supp. 919 (D.D.C.
1944). Since the reliability of postal service may vary from
country to country, service by mail is proper only when it is
addressed to the party to be served and a form of mail requiring a
signed receipt is used. An additional safeguard is provided by the
requirement that the mailing be attended to be the clerk of the
court. See also the provisions of paragraph (2) of this subdivision
(i) regarding proof of service by mail.
Under the applicable law it may be necessary, when the defendant
is an infant or incompetent person, to deliver the summons and
complaint to a guardian, committee, or similar fiduciary. In such a
case it would be advisable to make service under subparagraph (A),
(B), or (E).
Subparagraph (E) of paragraph (1) adds flexibility by permitting
the court by order to tailor the manner of service to fit the
necessities of a particular case or the peculiar requirements of
the law of the country in which the service is to be made. A
similar provision appears in a number of statutes, e.g., 35 U.S.C.
Secs. 146, 293; 38 U.S.C. Sec. 784(a); 46 [App.] U.S.C. Sec. 1292.
The next-to-last sentence of paragraph (1) permits service under
(C) and (E) to be made by any person who is not a party and is not
less than 18 years of age or who is designated by court order or by
the foreign court. Cf. Rule 45(c); N.Y.Civ.Prac.Act Secs. 233, 235.
This alternative increases the possibility that the plaintiff will
be able to find a process server who can proceed unimpeded in the
foreign country; it also may improve the chances of enforcing the
judgment in the country of service. Especially is the alternative
valuable when authority for the foreign service is found in a
statute or rule of court that limits the group of eligible process
servers to designated officials or special appointees who, because
directly connected with another "sovereign," may be particularly
offensive to the foreign country. See generally Smit, supra, at
1040-41. When recourse is had to subparagraph (A) or (B) the
identity of the process server always will be determined by the law
of the foreign country in which the service is made.
The last sentence of paragraph (1) sets forth an alternative
manner for the issuance and transmission of the summons for
service. After obtaining the summons from the clerk, the plaintiff
must ascertain the best manner of delivering the summons and
complaint to the person, court, or officer who will make the
service. Thus the clerk is not burdened with the task of
determining who is permitted to serve process under the law of a
particular country or the appropriate governmental or
nongovernmental channel for forwarding a letter rogatory. Under
(D), however, the papers must always be posted by the clerk.
Subdivision (i)(2). When service is made in a foreign country,
paragraph (2) permits methods for proof of service in addition to
those prescribed by subdivision (g). Proof of service in accordance
with the law of the foreign country is permitted because foreign
process servers, unaccustomed to the form or the requirement of
return of service prevalent in the United States, have on occasion
been unwilling to execute the affidavit required by Rule 4(g). See
Jones, supra, at 537; Longley, supra, at 35. As a corollary of the
alternate manner of service in subdivision (i)(1)(E), proof of
service as directed by order of the court is permitted. The special
provision for proof of service by mail is intended as an additional
safeguard when that method is used. On the type of evidence of
delivery that may be satisfactory to a court in lieu of a signed
receipt, see Aero Associates, Inc. v. La Metropolitana, 183 F.Supp.
357 (S.D.N.Y. 1960).
NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT
The wording of Rule 4(f) is changed to accord with the amendment
of Rule 13(h) referring to Rule 19 as amended.
NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT
Subdivision (a). This is a technical amendment to conform this
subdivision with the amendment of subdivision (c).
Subdivision (c). The purpose of this amendment is to authorize
service of process to be made by any person who is authorized to
make service in actions in the courts of general jurisdiction of
the state in which the district court is held or in which service
is made.
There is a troublesome ambiguity in Rule 4. Rule 4(c) directs
that all process is to be served by the marshal, by his deputy, or
by a person specially appointed by the court. But Rule 4(d)(7)
authorizes service in certain cases "in the manner prescribed by
the law of the state in which the district court is held. . . ."
And Rule 4(e), which authorizes service beyond the state and
service in quasi in rem cases when state law permits such service,
directs that "service may be made . . . under the circumstances and
in the manner prescribed in the [state] statute or rule." State
statutes and rules of the kind referred to in Rule 4(d)(7) and Rule
4(e) commonly designate the persons who are to make the service
provided for, e.g., a sheriff or a plaintiff. When that is so, may
the persons so designated by state law make service, or is service
in all cases to be made by a marshal or by one specially appointed
under present Rule 4(c)? The commentators have noted the ambiguity
and have suggested the desirability of an amendment. See 2 Moore's
Federal Practice ¶ 4.08 (1974); Wright & Miller, Federal
Practice and Procedure: Civil Sec. 1092 (1969). And the ambiguity
has given rise to unfortunate results. See United States for the
use of Tanos v. St. Paul Mercury Ins. Co., 361 F. 2d 838 (5th Cir.
1966); Veeck v. Commodity Enterprises, Inc., 487 F. 2d 423 (9th
Cir. 1973).
The ambiguity can be resolved by specific amendments to Rules
4(d)(7) and 4(e), but the Committee is of the view that there is no
reason why Rule 4(c) should not generally authorize service of
process in all cases by anyone authorized to make service in the
courts of general jurisdiction of the state in which the district
court is held or in which service is made. The marshal continues to
be the obvious, always effective officer for service of process.
LEGISLATIVE STATEMENT - 1983 AMENDMENT
128 CONGRESSIONAL RECORD H9848, DEC. 15, 1982
Mr. EDWARDS of California. Mr. Speaker, in July Mr. McClory and I
brought before the House a bill to delay the effective date of
proposed changes in rule 4 of the Federal Rules of Civil Procedure,
dealing with service of process. The Congress enacted that
legislation and delayed the effective date so that we could cure
certain problems in the proposed amendments to rule 4.
Since that time, Mr. McClory and I introduced a bill, H.R. 7154,
that cures those problems. It was drafted in consultation with
representatives of the Department of Justice, the Judicial
Conference of the United States, and others.
The Department of Justice and the Judicial Conference have
endorsed the bill and have urged its prompt enactment. Indeed, the
Department of Justice has indicated that the changes occasioned by
the bill will facilitate its collection of debts owned to the
Government.
I have a letter from the Office of Legislative Affairs of the
Department of Justice supporting the bill that I will submit for
the Record. Also, I am submitting for the Record a
section-by-section analysis of the bill.
H.R. 7154 makes much needed changes in rule 4 of the Federal
Rules of Civil Procedure and is supported by all interested
parties. I urge my colleagues to support it.
U.S. Department of Justice.
Office of Legislative Affairs,
Washington, D.C., December 10, 1982.
Hon. Peter W. Rodino, Jr.,
Chairman, Committee on the Judiciary, House of Representatives,
Washington, D.C.
Dear Mr. Chairman: This is to proffer the views of the Department
of Justice on H.R. 7154, the proposed Federal Rules of Civil
Procedure Amendments Act of 1982. While the agenda is extremely
tight and we appreciate that fact, we do reiterate that this
Department strongly endorses the enactment of H.R. 7154. We would
greatly appreciate your watching for any possible way to enact this
legislation expeditiously.
H.R. 7154 would amend Rule 4 of the Federal Rules of Civil
Procedure to relieve effectively the United States Marshals Service
of the duty of routinely serving summonses and complaints for
private parties in civil actions and would thus achieve a goal this
Department has long sought. Experience has shown that the Marshals
Service's increasing workload and limited budget require such major
relief from the burdens imposed by its role as process-server in
all civil actions.
The bill would also amend Rule 4 to permit certain classes of
defendants to be served by first class mail with a notice and
acknowledgment of receipt form enclosed. We have previously
expressed a preference for the service-by-mail provisions of the
proposed amendments to Rule 4 which the Supreme Court transmitted
to Congress on April 28, 1982.
The amendments proposed by the Supreme Court would permit service
by registered or certified mail, return receipt requested. We had
regarded the Supreme Court proposal as the more efficient because
it would not require and affirmative act of signing and mailing on
the part of a defendant. Moreover, the Supreme Court proposal would
permit the entry of a default judgment if the record contained a
returned receipt showing acceptance by the defendant or a returned
envelope showing refusal of the process by the defendant and
subsequent service and notice by first class mail. However, critics
of that system of mail service have argued that certified mail is
not an effective method of providing actual notice to defendants of
claims against them because signatures may be illegible or may not
match the name of the defendant, or because it may be difficult to
determine whether mail has been "unclaimed" or "refused," the
latter providing the sole basis for a default judgment.
As you know, in light of these criticisms the Congress enacted
Public Law 97-227 (H.R. 6663) postponing the effective date of the
proposed amendments to Rule 4 until October 1, 1983, so as to
facilitate further review of the problem. This Department opposed
the delay in the effective date, primarily because the Supreme
Court's proposed amendments also contained urgently needed
provisions designed to relieve the United States Marshals of the
burden of serving summonses and complaints in private civil
actions. In our view, these necessary relief provisions are readily
separable from the issues of service by certified mail and the
propriety of default judgment after service by certified mail which
the Congress felt warranted additional review.
During the floor consideration of H.R. 6663 Congressman Edwards
and other proponents of the delayed effective date pledged to
expedite the review of the proposed amendments to Rule 4, given the
need to provide prompt relief for the Marshals Service in the
service of process area. In this spirit Judiciary Committee staff
consulted with representatives of this Department, the Judicial
Conference, and others who had voiced concern about the proposed
amendments.
H.R. 7154 is the product of those consultations and accommodated
the concerns of the Department in a very workable and acceptable
manner.
Accordingly, we are satisfied that the provisions of H.R. 7154
merit the support of all three branches of the Federal Government
and everyone else who has a stake in the fair and efficient service
of process in civil actions. We urge prompt consideration of H.R.
7154 by the Committee.(!1)
The Office of Management and Budget has advised that there is no
objection to the submission of this report from the standpoint of
the Administration's program.
Sincerely,
Robert A. McConnell,
Assistant Attorney General.
_______
(!1) In addition to amending Rule 4, we have previously
recommended: (a) amendments to 28 U.S.C. Sec. 569(b) redefining the
Marshals traditional role by eliminating the statutory requirement
that they serve subpoenas, as well as summonses and complaints,
and; (b) amendments to 28 U.S.C. Sec. 1921 changing the manner and
level in which marshal fees are charged for serving private civil
process. These legislative changes are embodied in Section 10 of S.
2567 and the Department's proposed fiscal year 1983 Appropriations
Authorization bill. If, in the Committee's judgment, efforts to
incorporate these suggested amendments in H.R. 7154 would in any
way impede consideration of the bill during the few remaining
legislative days in the 97th Congress, we would urge that they be
separately considered early in the 98th Congress.
H.R. 7154 - FEDERAL RULES OF CIVIL PROCEDURE AMENDMENTS ACT OF 1982
BACKGROUND
The Federal Rules of Civil Procedure set forth the procedures to
be followed in civil actions and proceedings in United States
district courts. These rules are usually amended by a process
established by 28 U.S.C. 2072, often referred to as the "Rules
Enabling Act". The Rules Enabling Act provides that the Supreme
Court can propose new rules of "practice and procedure" and
amendments to existing rules by transmitting them to Congress after
the start of a regular session but not later than May 1. The rules
and amendments so proposed take effect 90 days after transmittal
unless legislation to the contrary is enacted.(!1)
On April 28, 1982, the Supreme Court transmitted to Congress
several proposed amendments to the Federal Rules of Civil
Procedure, the Federal Rules of Criminal Procedure (which govern
criminal cases and proceedings in Federal courts), and the Rules
and Forms Governing Proceedings in the United States District
Courts under sections 2254 and 2255 of Title 28, United States Code
(which govern habeas corpus proceedings). These amendments were to
have taken effect on August 1, 1982.
The amendments to Rule 4 of the Federal Rules of Civil Procedure
were intended primarily to relieve United States marshals of the
burden of serving summonses and complaints in private civil
actions. Appendix II, at 7 (Report of the Committee on Rules of
Practice and Procedure), 16 (Advisory Committee Note). The
Committee received numerous complaints that the changes not only
failed to achieve that goal, but that in the process the changes
saddled litigators with flawed mail service, deprived litigants of
the use of effective local procedures for service, and created a
time limit for service replete with ambiguities that could only be
resolved by costly litigation. See House Report No. 97-662, at 2-4
(1982).
In order to consider these criticisms, Congress enacted Public
Law 97-227, postponing the effective date of the proposed
amendments to Rule 4 until October 1, 1983.(!2) Accordingly, in
order to help shape the policy behind, and the form of, the
proposed amendments, Congress must enact legislation before October
1, 1983.(!3)
With that deadline and purpose in mind, consultations were held
with representatives of the Judicial Conference, the Department of
Justice, and others who had voiced concern about the proposed
amendments. H.R. 7154 is the product of those consultations. The
bill seeks to effectuate the policy of relieving the Marshals
Service of the duty of routinely serving summonses and complaints.
It provides a system of service by mail modeled upon a system found
to be effective in California, and finally, it makes appropriate
stylistic, grammatical, and other changes in Rule 4.
NEED FOR THE LEGISLATION
1. CURRENT RULE 4
Rule 4 of the Federal Rules of Civil Procedure relates to the
issuance and service of process. Subsection (c) authorizes service
of process by personnel of the Marshals Service, by a person
specially appointed by the Court, or "by a person authorized to
serve process in an action brought in the courts of general
jurisdiction of the state in which the district court is held or in
which service is made." Subsection (d) describes how a summons and
complaint must be served and designates those persons who must be
served in cases involving specified categories of defendants. Mail
service is not directly authorized. Subsection (d)(7), however,
authorizes service under the law of the state in which the district
court sits upon defendants described in subsections (d)(1) (certain
individuals) and (d)(3) (organizations). Thus, if state law
authorizes service by mail of a summons and complaint upon an
individual or organization described in subsections (d)(1) or (3),
then subsection (d)(7) authorizes service by mail for United States
district courts in that state.(!4)
2. REDUCING THE ROLE OF MARSHALS
The Supreme Court's proposed modifications of Rule 4 were
designed to alleviate the burden on the Marshals Service of serving
summonses and complaints in private civil actions. Appendix II, at
7 (Report of the Committee on Rules of Practice and Procedure), 16
(Advisory Committee Note). While the Committee received no
complaints about the goal of reducing the role of the Marshals
Service, the Court's proposals simply failed to achieve that goal.
See House Report No. 97-662, at 2-3 (1982).
The Court's proposed Rule 4(c)(2)(B) required the Marshals
Service to serve summonses and complaints "pursuant to any
statutory provision expressly providing for service by a United
States Marshal or his deputy." (!5) One such statutory provision is
28 U.S.C. 569(b), which compels marshals to "execute all lawful
writs, process and orders issued under authority of the United
States, including those of the courts * * *." (emphasis added).
Thus, any party could have invoked 28 U.S.C. 569(b) to utilize a
marshal for service of a summons and complaint, thereby thwarting
the intent of the new subsection to limit the use of marshals. The
Justice Department acknowledges that the proposed subsection did
not accomplish its objectives.(!6)
Had 28 U.S.C. 569(b) been inconsistent with proposed Rule
4(c)(2)(B), the latter would have nullified the former under 28
U.S.C. 2072, which provides that "All laws in conflict with such
rules shall be of no further force or effect after such rules have
taken effect." Since proposed Rule 4(c)(2)(B) specifically referred
to statutes such as 28 U.S.C. 569(b), however, the new subsection
did not conflict with 28 U.S.C. 569(b) and did not, therefore,
supersede it.
H.R. 7154 cures this problem and achieves the desired reduction
in the role of the Marshals Service by authorizing marshals to
serve summonses and complaints "on behalf of the United States". By
so doing, H.R. 7154 eliminates the loophole in the Court's proposed
language and still provides for service by marshals on behalf of
the Government.(!7)
3. MAIL SERVICE
The Supreme Court's proposed subsection (d)(7) and (8)
authorized, as an alternative to personal service, mail service of
summonses and complaints on individuals and organizations described
in subsection (d)(1) and (3), but only through registered or
certified mail, restricted delivery. Critics of that system of mail
service argued that registered and certified mail were not
necessarily effective methods of providing actual notice to
defendants of claims against them. This was so, they argued,
because signatures may be illegible or may not match the name of
the defendant, or because it may be difficult to determine whether
mail has been "unclaimed" or "refused", the latter apparently
providing the sole basis for a default judgment.(!8)
H.R. 7154 provides for a system of service by mail similar to the
system now used in California. See Cal. Civ. Pro. Sec. 415.30 (West
1973). Service would be by ordinary mail with a notice and
acknowledgment of receipt form enclosed. If the defendant returns
the acknowledgment form to the sender within 20 days of mailing,
the sender files the return and service is complete. If the
acknowledgment is not returned within 20 days of mailing, then
service must be effected through some other means provided for in
the Rules.
This system of mail service avoids the notice problems created by
the registered and certified mail procedures proposed by the
Supreme Court. If the proper person receives the notice and returns
the acknowledgment, service is complete. If the proper person does
not receive the mailed form, or if the proper person receives the
notice but fails to return the acknowledgment form, another method
of service authorized by law is required.(!9) In either instance,
however, the defendant will receive actual notice of the claim. In
order to encourage defendants to return the acknowledgment form,
the court can order a defendant who does not return it to pay the
costs of service unless the defendant can show good cause for the
failure to return it.
4. THE LOCAL OPTION
The Court's proposed amendments to Rule 4 deleted the provision
in current subsection (d)(7) that authorizes service of a summons
and complaint upon individuals and organizations "in the manner
prescribed by the law of the state in which the district court is
held for the service of summons or other like process upon any such
defendant in an action brought in the courts of general
jurisdiction of that state." The Committee received a variety of
complaints about the deletion of this provision. Those in favor of
preserving the local option saw no reason to forego systems of
service that had been successful in achieving effective
notice.(!10)
H.R. 7154 carries forward the policy of the current rule and
permits a party to serve a summons and complaint upon individuals
and organizations described in Rule 4(d)(1) and (3) in accordance
with the law of the state in which the district court sits. Thus,
the bill authorizes four methods of serving a summons and complaint
on such defendants: (1) service by a nonparty adult (Rule
4(c)(2)(A)); (2) service by personnel of the Marshals Service, if
the party qualifies, such as because the party is proceeding in
forma pauperis (Rule 4(c)(2)(B)); (3) service in any manner
authorized by the law of the state in which the district court is
held (Rule 4(c)(2)(C)(i)); or (4) service by regular mail with a
notice and acknowledgment of receipt form enclosed (Rule
4(c)(2)(C)(ii)).(!11)
5. TIME LIMITS
Rule 4 does not currently provide a time limit within which
service must be completed. Primarily because United States marshals
currently effect service of process, no time restriction has been
deemed necessary. Appendix II, at 18 (Advisory Committee Note).
Along with the proposed changes to subdivisions (c) and (d) to
reduce the role of the Marshals Service, however, came new
subdivision (j), requiring that service of a summons and complaint
be made within 120 days of the filing of the complaint. If service
were not accomplished within that time, proposed subdivision (j)
required that the action "be dismissed as to that defendant without
prejudice upon motion or upon the court's own initiative". Service
by mail was deemed made for purposes of subdivision (j) "as of the
date on which the process was accepted, refused, or returned as
unclaimed".(!12)
H.R. 7154 adopts a policy of limiting the time to effect service.
It provides that if a summons and complaint have not been served
within 120 days of the filing of the complaint and the plaintiff
fails to show "good cause" for not completing service within that
time, then the court must dismiss the action as to the unserved
defendant. H.R. 7154 ensures that a plaintiff will be notified of
an attempt to dismiss the action. If dismissal for failure to serve
is raised by the court upon its own motion, the legislation
requires that the court provide notice to the plaintiff. If
dismissal is sought by someone else, Rule 5(a) of the Federal Rules
of Civil Procedure requires that the motion be served upon the
plaintiff.
Like proposed subsection (j), H.R. 7154 provides that a dismissal
for failure to serve within 120 days shall be "without prejudice".
Proposed subsection (j) was criticized by some for ambiguity
because, it was argued, neither the text of subsection (j) nor the
Advisory Committee Note indicated whether a dismissal without
prejudice would toll a statute of limitation. See House Report
97-662, at 3-4 (1982). The problem would arise when a plaintiff
files the complaint within the applicable statute of limitation
period but does not effect service within 120 days. If the statute
of limitation period expires during that period, and if the
plaintiff's action is dismissed "without prejudice", can the
plaintiff refile the complaint and maintain the action? The answer
depends upon how the statute of limitation is tolled.(!13)
If the law provides that the statute of limitation is tolled by
filing and service of the complaint, then a dismissal under H.R.
7154 for failure to serve within the 120 days would, by the terms
of the law controlling the tolling, bar the plaintiff from later
maintaining the cause of action.(!14) If the law provides that the
statute of limitation is tolled by filing alone, then the status of
the plaintiff's cause of action turns upon the plaintiff's
diligence. If the plaintiff has not been diligent, the court will
dismiss the complaint for failure to serve within 120 days, and the
plaintiff will be barred from later maintaining the cause of action
because the statute of limitation has run. A dismissal without
prejudice does not confer upon the plaintiff any rights that the
plaintiff does not otherwise possess and leaves a plaintiff whose
action has been dismissed in the same position as if the action had
never been filed.(!15) If, on the other hand, the plaintiff has
made reasonable efforts to effect service, then the plaintiff can
move under Rule 6(b) to enlarge the time within which to serve or
can oppose dismissal for failure to serve. A court would
undoubtedly permit such a plaintiff additional time within which to
effect service. Thus, a diligent plaintiff can preserve the cause
of action. This result is consistent with the policy behind the
time limit for service and with statutes of limitation, both of
which are designed to encourage prompt movement of civil actions in
the federal courts.
6. CONFORMING AND CLARIFYING SUBSECTIONS (D)(4) AND (5)
Current subsections (d)(4) and (5) prescribe which persons must
be served in cases where an action is brought against the United
States or an officer or agency of the United States. Under
subsection (d)(4), where the United States is the named defendant,
service must be made as follows: (1) personal service upon the
United States attorney, an assistant United States attorney, or a
designated clerical employee of the United States attorney in the
district in which the action is brought; (2) registered or
certified mail service to the Attorney General of the United States
in Washington, D.C.; and (3) registered or certified mail service
to the appropriate officer or agency if the action attacks an order
of that officer or agency but does not name the officer or agency
as a defendant. Under subsection (d)(5), where an officer or agency
of the United States is named as a defendant, service must be made
as in subsection (d)(4), except that personal service upon the
officer or agency involved is required.(!16)
The time limit for effecting service in H.R. 7154 would present
significant difficulty to a plaintiff who has to arrange for
personal service upon an officer or agency that may be thousands of
miles away. There is little reason to require different types of
service when the officer or agency is named as a party, and H.R.
7154 therefore conforms the manner of service under subsection
(d)(5) to the manner of service under subsection (d)(4).
SECTION-BY-SECTION ANALYSIS
SECTION 1
Section 1 provides that the short title of the bill is the
"Federal Rules of Civil Procedure Amendments Act of 1982".
SECTION 2
Section 2 of the bill consists of 7 numbered paragraphs, each
amending a different part of Rule 4 of the Federal Rules of Civil
Procedure.
Paragraph (1) deletes the requirement in present Rule 4(a) that a
summons be delivered for service to the marshal or other person
authorized to serve it. As amended by the legislation, Rule 4(a)
provides that the summons be delivered to "the plaintiff or the
plaintiff's attorney, who shall be responsible for prompt service
of the summons and complaint". This change effectuates the policy
proposed by the Supreme Court. See Appendix II, at - (Advisory
Committee Note).
Paragraph (2) amends current Rule 4(c), which deals with the
service of process. New Rule 4(c)(1) requires that all process,
other than a subpoena or a summons and complaint, be served by the
Marshals Service or by a person especially appointed for that
purpose. Thus, the Marshals Service or persons specially appointed
will continue to serve all process other than subpoenas and
summonses and complaints, a policy identical to that proposed by
the Supreme Court. See Appendix II, at 8 (Report of the Judicial
Conference Committee on Rules of Practice and Procedure). The
service of subpoenas is governed by Rule 45,(!17) and the service
of summonses and complaints is governed by new Rule 4(c)(2).
New Rule 4(c)(2)(A) sets forth the general rule that summonses
and complaints shall be served by someone who is at least 18 years
old and not a party to the action or proceeding. This is consistent
with the Court's proposal. Appendix II, at 16 (Advisory Committee
Note). Subparagraphs (B) and (C) of new Rule 4(c)(2) set forth
exceptions to this general rule.
Subparagraph (B) sets forth 3 exceptions to the general rule.
First, subparagraph (B)(i) requires the Marshals Service (or
someone specially appointed by the court) to serve summonses and
complaints on behalf of a party proceeding in forma pauperis or a
seaman authorized to proceed under 28 U.S.C. 1916. This is
identical to the Supreme Court's proposal. See Appendix II, at 3
(text of proposed rule), 16 (Advisory Committee Note). Second,
subparagraph (B)(ii) requires the Marshals Service (or someone
specially appointed by the court) to serve a summons and complaint
when the court orders the marshals to do so in order properly to
effect service in that particular action.(!18) This, except for
nonsubstantive changes in phrasing, is identical to the Supreme
Court's proposal. See Appendix II, at 3 (text of proposed rule), 16
(Advisory Committee Note).
Subparagraph (C) of new Rule 4(c)(2) provides 2 exceptions to the
general rule of service by a nonparty adult. These exceptions apply
only when the summons and complaint is to be served upon persons
described in Rule 4(d)(1) (certain individuals) or Rule 4(d)(3)
(organizations).(!19) First, subparagraph (C)(i) permits service of
a summons and complaint in a manner authorized by the law of the
state in which the court sits. This restates the option to follow
local law currently found in Rule 4(d)(7) and would authorize
service by mail if the state law so allowed. The method of mail
service in that instance would, of course, be the method permitted
by state law.
Second, subparagraph (C)(ii) permits service of a summons and
complaint by regular mail. The sender must send to the defendant,
by first-class mail, postage prepaid, a copy of the summons and
complaint, together with 2 copies of a notice and acknowledgment of
receipt of summons and complaint form and a postage prepaid return
envelope addressed to the sender. If a copy of the notice and
acknowledgment form is not received by the sender within 20 days
after the date of mailing, then service must be made under Rule
4(c)(2)(A) or (B) (i.e., by a nonparty adult or, if the person
qualifies,(!20) by personnel of the Marshals Service or a person
specially appointed by the court) in the manner prescribed by Rule
4(d)(1) or (3) (i.e., personal or substituted service).
New Rule 4(c)(2)(D) permits a court to penalize a person who
avoids service by mail. It authorizes the court to order a person
who does not return the notice and acknowledgment form within 20
days after mailing to pay the costs of service, unless that person
can show good cause for failing to return the form. The purpose of
this provision is to encourage the prompt return of the form so
that the action can move forward without unnecessary delay.
Fairness requires that a person who causes another additional and
unnecessary expense in effecting service ought to reimburse the
party who was forced to bear the additional expense.
Subparagraph (E) of rule 4(c)(2) requires that the notice and
acknowledgment form described in new Rule 4(c)(2)(C)(ii) be
executed under oath or affirmation. This provision tracks the
language of 28 U.S.C. 1746, which permits the use of unsworn
declarations under penalty of perjury whenever an oath or
affirmation is required. Statements made under penalty of perjury
are subject to 18 U.S,C. 1621(2), which provides felony penalties
for someone who "willfully subscribes as true any material matter
which he does not believe to be true". The requirement that the
form be executed under oath or affirmation is intended to encourage
truthful submissions to the court, as the information contained in
the form is important to the parties.(!21)
New Rule 4(c)(3) authorizes the court freely to make special
appointments to serve summonses and complaints under Rule
4(c)(2)(B) and all other process under Rule 4(c)(1). This carries
forward the policy of present Rule 4(c).
Paragraph (3) of section 2 of the bill makes a non-substantive
change in the caption of Rule 4(d) in order to reflect more
accurately the provisions of Rule 4(d). Paragraph (3) also deletes
a provision on service of a summons and complaint pursuant to state
law. This provision is redundant in view of new Rule 4(c)(2)(C)(i).
Paragraph (4) of section 2 of the bill conforms Rule 4(d)(5) to
present Rule 4(d)(4). Rule 4(d)(5) is amended to provide that
service upon a named defendant agency or officer of the United
States shall be made by "sending" a copy of the summons and
complaint "by registered or certified mail" to the defendant.(!22)
Rule 4(d)(5) currently provides for service by "delivering" the
copies to the defendant, but 28 U.S.C. 1391(e) authorizes delivery
upon a defendant agency or officer outside of the district in which
the action is brought by means of certified mail. Hence, the change
is not a marked departure from current practice.
Paragraph (5) of section 2 of the bill amends the caption of Rule
4(e) in order to describe subdivision (e) more accurately.
Paragraph (6) of section 2 of the bill amends Rule 4(g), which
deals with return of service. Present rule 4(g) is not changed
except to provide that, if service is made pursuant to the new
system of mail service (Rule 4(c)(2)(C)(ii)), the plaintiff or the
plaintiff's attorney must file with the court the signed
acknowledgment form returned by the person served.
Paragraph (7) of section 2 of the bill adds new subsection (j) to
provide a time limitation for the service of a summons and
complaint. New Rule 4(j) retains the Supreme Court's requirement
that a summons and complaint be served within 120 days of the
filing of the complaint. See Appendix II, at 18 (Advisory Committee
Note).(!23) The plaintiff must be notified of an effort or
intention to dismiss the action. This notification is mandated by
subsection (j) if the dismissal is being raised on the court's own
initiative and will be provided pursuant to Rule 5 (which requires
service of motions upon the adverse party) if the dismissal is
sought by someone else.(!24) The plaintiff may move under Rule 6(b)
to enlarge the time period. See Appendix II, at 1d. (Advisory
Committee Note). If service is not made within the time period or
enlarged time period, however, and if the plaintiff fails to show
"good cause" for not completing service, then the court must
dismiss the action as to the unserved defendant. The dismissal is
"without prejudice". The term "without prejudice" means that the
dismissal does not constitute an adjudication of the merits of the
complaint. A dismissal "without prejudice" leaves a plaintiff whose
action has been dismissed in the position in which that person
would have been if the action had never been filed.
SECTION 3
Section 3 of the bill amends the Appendix of Forms at the end of
the Federal Rules of Civil Procedure by adding a new form 18A,
"Notice and Acknowledgment for Service by Mail". This new form is
required by new Rule 4(c)(2)(C)(ii), which requires that the notice
and acknowledgment form used with service by regular mail conform
substantially to Form 18A.
Form 18A as set forth in section 3 of the bill is modeled upon a
form used in California.(!25) It contains 2 parts. The first part
is a notice to the person being served that tells that person that
the enclosed summons and complaint is being served pursuant to Rule
4(c)(2)(C)(ii); advises that person to sign and date the
acknowledgment form and indicate the authority to receive service
if the person served is not the party to the action (e.g., the
person served is an officer of the organization being served); and
warns that failure to return the form to the sender within 20 days
may result in the court ordering the party being served to pay the
expenses involved in effecting service. The notice also warns that
if the complaint is not responded to within 20 days, a default
judgment can be entered against the party being served. The notice
is dated under penalty of perjury by the plaintiff or the
plaintiff's attorney.(!26)
The second part of the form contains the acknowledgment of
receipt of the summons and complaint. The person served must
declare on this part of the form, under penalty of perjury, the
date and place of service and the person's authority to receive
service.
SECTION 4
Section 4 of the bill provides that the changes in Rule 4 made by
H.R. 7154 will take effect 45 days after enactment, thereby giving
the bench and bar, as well as other interested persons and
organizations (such as the Marshals Service), an opportunity to
prepare to implement the changes made by the legislation. The
delayed effective date means that service of process issued before
the effective date will be made in accordance with current Rule 4.
Accordingly, all process in the hands of the Marshals Service prior
to the effective date will be served by the Marshals Service under
the present rule.
SECTION 5
Section 5 of the bill provides that the amendments to Rule 4
proposed by the Supreme Court (whose effective date was postponed
by Public Law 97-227) shall not take effect. This is necessary
because under Public Law 97-227 the proposed amendments will take
effect on October 1, 1983.
_______
(!1) The drafting of the rules and amendments is actually done by
a committee of the Judicial Conference of the United States. In the
case of the Federal Rules of Civil Procedure, the initial draft is
prepared by the Advisory Committee on Civil Rules. The Advisory
Committee's draft is then reviewed by the Committee on Rules of
Practice and Procedure, which must give its approval to the draft.
Any draft approved by that committee is forwarded to the Judicial
Conference. If the Judicial Conference approves the draft, it
forwards the draft to the Supreme Court. The Judicial Conference's
role in the rule-making process is defined by 28 U.S.C. 331.
For background information about how the Judicial Conference
committees operate, see Wright, "Procedural Reform: Its Limitation
and Its Future," 1 Ga.L.Rev. 563, 565-66 (1967) (civil rules);
statement of United States District Judge Roszel C. Thomsen,
Hearings on Proposed Amendments to the Federal Rules of Criminal
Procedure Before the Subcommittee on Criminal Justice of the House
Committee on the Judiciary, 93d Cong., 2d Sess. at 25 (1974)
(criminal rules); statement of United States Circuit Judge J.
Edward Lumbard, id. at 203 (criminal rules); J. Weinstein, Reform
of Federal Court Rulemaking Procedure (1977); Weinstein, "Reform of
Federal Rulemaking Procedures," 76 Colum.L.Rev. 905 (1976).
(!2) All of the other amendments, including all of the proposed
amendments to the Federal Rules of Criminal Procedure and the Rules
and Forms Governing Proceedings in the United States District
Courts under sections 2254 and 2255 of Title 28, United States
Code, took effect on August 1, 1982, as scheduled.
(!3) The President has urged Congress to act promptly. See
President's Statement on Signing H.R. 6663 into Law, 18 Weekly
Comp. of Pres. Doc. 982 (August 2, 1982).
(!4) Where service of a summons is to be made upon a party who is
neither an inhabitant of, nor found within, the state where the
district court sits, subsection (e) authorizes service under a
state statute or rule of court that provides for service upon such
a party. This would authorize mail service if the state statute or
rule of court provided for service by mail.
(!5) The Court's proposal authorized service by the Marshals
Service in other situations. This authority, however, was not seen
as thwarting the underlying policy of limiting the use of marshals.
See Appendix II, at 16, 17 (Advisory Committee Note).
(!6) Appendix I, at 2 (letter of Assistant Attorney General
Robert A. McConnell).
(!7) The provisions of H.R. 7154 conflict with 28 U.S.C. 569(b)
because the latter is a broader command to marshals to serve all
federal court process. As a later statutory enactment, however,
H.R. 7154 supersedes 28 U.S.C. 569(b), thereby achieving the goal
of reducing the role of marshals.
(!8) Proposed Rule 4(d)(8) provided that "Service . . . shall not
be the basis for the entry of a default or a judgment by default
unless the record contains a return receipt showing acceptance by
the defendant or a returned envelope showing refusal of the process
by the defendant." This provision reflects a desire to preclude
default judgments on unclaimed mail. See Appendix II, at 7 (Report
of the Committee on Rules of Practice and Procedure).
The interpretation of Rule 4(d)(8) to require a refusal of
delivery in order to have a basis for a default judgment, while
undoubtedly the interpretation intended and the interpretation that
reaches the fairest result, may not be the only possible
interpretation. Since a default judgment can be entered for
defendant's failure to respond to the complaint once defendant has
been served and the time to answer the complaint has run, it can be
argued that a default judgment can be obtained where the mail was
unclaimed because proposed subsection (j), which authorized
dismissal of a complaint not served within 120 days, provided that
mail service would be deemed made "on the date on which the process
was accepted, refused, or returned as unclaimed" (emphasis added).
(!9) See p. 15 infra.
(!10) Proponents of the California system of mail service, in
particular, saw no reason to supplant California's proven method of
mail service with a certified mail service that they believed
likely to result in default judgments without actual notice to
defendants. See House Report No. 97-662, at 3 (1982).
(!11) The parties may, of course, stipulate to service, as is
frequently done now.
(!12) While return of the letter as unclaimed was deemed service
for the purpose of determining whether the plaintiff's action could
be dismissed, return of the letter as unclaimed was not service for
the purpose of entry of a default judgment against the defendant.
See note 8 supra.
(!13) The law governing the tolling of a statute of limitation
depends upon the type of civil action involved. In adversity
action, state law governs tolling. Walker v. Armco Steel Corp., 446
U.S. 740 (1980). In Walker, plaintiff had filed his complaint and
thereby commenced the action under Rule 3 of the Federal Rules of
Civil Procedure within the statutory period. He did not, however,
serve the summons and complaint until after the statutory period
had run. The Court held that state law (which required both filing
and service within the statutory period) governed, barring
plaintiff's action.
In the federal question action, the courts of appeals have
generally held that Rule 3 governs, so that the filing of the
complaint tolls a statute of limitation. United States v. Wahl, 538
F.2d 285 (6th Cir. 1978); Windbrooke Dev. Co. v. Environmental
Enterprises Inc. of Fla., 524 F.2d 461 (5th Cir. 1975);
Metropolitan Paving Co. v. International Union of Operating
Engineers, 439 F.2d 300 (10th Cir. 1971); Moore Co. v. Sid
Richardson Carbon & Gasoline Co., 347 F.2d 921 (8th Cir.), cert.
denied, 383 U.S. 925, reh. denied, 384 U.S. 914 (1965); Hoffman v.
Halden, 268 F.2d 280 (9th Cir. 1959). The continued validity of
this line of cases, however, must be questioned in light of the
Walker case, even though the Court in that case expressly reserved
judgment about federal question actions, see Walker v. Armco Steel
Corp., 446 U.S. 741, 751 n.11 (1980).
(!14) The same result obtains even if service occurs within the
120 day period, if the service occurs after the statute of
limitation has run.
(!15) See p. 19 infra.
(!16) See p. 17 infra.
(!17) Rule 45(c) provides that "A subpoena may be served by the
marshal, by his deputy, or by any other person who is not a party
and is not less than 18 years of age."
(!18) Some litigators have voiced concern that there may be
situations in which personal service by someone other than a member
of the Marshals Service may present a risk of injury to the person
attempting to make the service. For example, a hostile defendant
may have a history of injuring persons attempting to serve process.
Federal judges undoubtedly will consider the risk of harm to
private persons who would be making personal service when deciding
whether to order the Marshals Service to make service under Rule
4(c)(2)(B)(iii).
(!19) The methods of service authorized by Rule 4(c)(2)(C) may be
invoked by any person seeking to effect service. Thus, a nonparty
adult who receives the summons and complaint for service under Rule
4(c)(1) may serve them personally or by mail in the manner
authorized by Rule 4(c)(2)(C)(ii). Similarly, the Marshals Service
may utilize the mail service authorized by Rule 4(c)(2)(C)(ii) when
serving a summons and complaint under Rule 4(c)(2)(B)(i)(iii). When
serving a summons and complaint under Rule 4(c)(2)(B)(ii), however,
the Marshals Service must serve in the manner set forth in the
court's order. If no particular manner of service is specified,
then the Marshals Service may utilize Rule 4(c)(2)(C)(ii). It would
not seem to be appropriate, however, for the Marshals Service to
utilize Rule 4(c)(2)(C)(ii) in a situation where a previous attempt
to serve by mail failed. Thus, it would not seem to be appropriate
for the Marshals Service to attempt service by regular mail when
serving a summons and complaint on behalf of a plaintiff who is
proceeding in forma pauperis if that plaintiff previously attempted
unsuccessfully to serve the defendant by mail.
(!20) To obtain service by personnel of the Marshals Service or
someone specially appointed by the court, a plaintiff who has
unsuccessfully attempted mail service under Rule 4(c)(2)(C)(ii)
must meet the conditions of Rule 4(c)(2)(B) - for example, the
plaintiff must be proceeding in forma pauperis.
(!21) For example, the sender must state the date of mailing on
the form. If the form is not returned to the sender within 20 days
of that date, then the plaintiff must serve the defendant in
another manner and the defendant may be liable for the costs of
such service. Thus, a defendant would suffer the consequences of a
misstatement about the date of mailing.
(!22) See p. 12 supra.
(!23) The 120 day period begins to run upon the filing of each
complaint. Thus, where a defendant files a cross-claim against the
plaintiff, the 120 day period begins to run upon the filing of the
cross-complaint, not upon the filing of the plaintiff's complaint
initiating the action.
(!24) The person who may move to dismiss can be the putative
defendant (i.e., the person named as defendant in the complaint
filed with the court) or, in multi-party actions, another party to
the action. (If the putative defendant moves to dismiss and the
failure to effect service is due to that person's evasion of
service, a court should not dismiss because the plaintiff has "good
cause" for not completing service.)
(!25) See Cal. Civ. Pro. Sec. 415.30 (West 1973).
(!26) See p. 16 supra.
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendments are technical. No substantive change is intended.
NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT
Purposes of Revision. The general purpose of this revision is to
facilitate the service of the summons and complaint. The revised
rule explicitly authorizes a means for service of the summons and
complaint on any defendant. While the methods of service so
authorized always provide appropriate notice to persons against
whom claims are made, effective service under this rule does not
assure that personal jurisdiction has been established over the
defendant served.
First, the revised rule authorizes the use of any means of
service provided by the law not only of the forum state, but also
of the state in which a defendant is served, unless the defendant
is a minor or incompetent.
Second, the revised rule clarifies and enhances the cost-saving
practice of securing the assent of the defendant to dispense with
actual service of the summons and complaint. This practice was
introduced to the rule in 1983 by an act of Congress authorizing
"service-by-mail," a procedure that effects economic service with
cooperation of the defendant. Defendants that magnify costs of
service by requiring expensive service not necessary to achieve
full notice of an action brought against them are required to bear
the wasteful costs. This provision is made available in actions
against defendants who cannot be served in the districts in which
the actions are brought.
Third, the revision reduces the hazard of commencing an action
against the United States or its officers, agencies, and
corporations. A party failing to effect service on all the offices
of the United States as required by the rule is assured adequate
time to cure defects in service.
Fourth, the revision calls attention to the important effect of
the Hague Convention and other treaties bearing on service of
documents in foreign countries and favors the use of
internationally agreed means of service. In some respects, these
treaties have facilitated service in foreign countries but are not
fully known to the bar.
Finally, the revised rule extends the reach of federal courts to
impose jurisdiction over the person of all defendants against whom
federal law claims are made and who can be constitutionally
subjected to the jurisdiction of the courts of the United States.
The present territorial limits on the effectiveness of service to
subject a defendant to the jurisdiction of the court over the
defendant's person are retained for all actions in which there is a
state in which personal jurisdiction can be asserted consistently
with state law and the Fourteenth Amendment. A new provision
enables district courts to exercise jurisdiction, if permissible
under the Constitution and not precluded by statute, when a federal
claim is made against a defendant not subject to the jurisdiction
of any single state.
The revised rule is reorganized to make its provisions more
accessible to those not familiar with all of them. Additional
subdivisions in this rule allow for more captions; several overlaps
among subdivisions are eliminated; and several disconnected
provisions are removed, to be relocated in a new Rule 4.1.
The Caption of the Rule. Prior to this revision, Rule 4 was
entitled "Process" and applied to the service of not only the
summons but also other process as well, although these are not
covered by the revised rule. Service of process in eminent domain
proceedings is governed by Rule 71A. Service of a subpoena is
governed by Rule 45, and service of papers such as orders, motions,
notices, pleadings, and other documents is governed by Rule 5.
The revised rule is entitled "Summons" and applies only to that
form of legal process. Unless service of the summons is waived, a
summons must be served whenever a person is joined as a party
against whom a claim is made. Those few provisions of the former
rule which relate specifically to service of process other than a
summons are relocated in Rule 4.1 in order to simplify the text of
this rule.
Subdivision (a). Revised subdivision (a) contains most of the
language of the former subdivision (b). The second sentence of the
former subdivision (b) has been stricken, so that the federal court
summons will be the same in all cases. Few states now employ
distinctive requirements of form for a summons and the
applicability of such a requirement in federal court can only serve
as a trap for an unwary party or attorney. A sentence is added to
this subdivision authorizing an amendment of a summons. This
sentence replaces the rarely used former subdivision 4(h). See 4A
Wright & Miller, Federal Practice and Procedure Sec. 1131 (2d ed.
1987).
Subdivision (b). Revised subdivision (b) replaces the former
subdivision (a). The revised text makes clear that the
responsibility for filling in the summons falls on the plaintiff,
not the clerk of the court. If there are multiple defendants, the
plaintiff may secure issuance of a summons for each defendant, or
may serve copies of a single original bearing the names of multiple
defendants if the addressee of the summons is effectively
identified.
Subdivision (c). Paragraph (1) of revised subdivision (c) retains
language from the former subdivision (d)(1). Paragraph (2) retains
language from the former subdivision (a), and adds an appropriate
caution regarding the time limit for service set forth in
subdivision (m).
The 1983 revision of Rule 4 relieved the marshals' offices of
much of the burden of serving the summons. Subdivision (c)
eliminates the requirement for service by the marshal's office in
actions in which the party seeking service is the United States.
The United States, like other civil litigants, is now permitted to
designate any person who is 18 years of age and not a party to
serve its summons.
The court remains obligated to appoint a marshal, a deputy, or
some other person to effect service of a summons in two classes of
cases specified by statute: actions brought in forma pauperis or by
a seaman. 28 U.S.C. Secs. 1915, 1916. The court also retains
discretion to appoint a process server on motion of a party. If a
law enforcement presence appears to be necessary or advisable to
keep the peace, the court should appoint a marshal or deputy or
other official person to make the service. The Department of
Justice may also call upon the Marshals Service to perform services
in actions brought by the United States. 28 U.S.C. Sec. 651.
Subdivision (d). This text is new, but is substantially derived
from the former subdivisions (c)(2)(C) and (D), added to the rule
by Congress in 1983. The aims of the provision are to eliminate the
costs of service of a summons on many parties and to foster
cooperation among adversaries and counsel. The rule operates to
impose upon the defendant those costs that could have been avoided
if the defendant had cooperated reasonably in the manner
prescribed. This device is useful in dealing with defendants who
are furtive, who reside in places not easily reached by process
servers, or who are outside the United States and can be served
only at substantial and unnecessary expense. Illustratively, there
is no useful purpose achieved by requiring a plaintiff to comply
with all the formalities of service in a foreign country, including
costs of translation, when suing a defendant manufacturer, fluent
in English, whose products are widely distributed in the United
States. See Bankston v. Toyota Motor Corp., 889 F.2d 172 (8th Cir.
1989).
The former text described this process as service-by-mail. This
language misled some plaintiffs into thinking that service could be
effected by mail without the affirmative cooperation of the
defendant. E.g., Gulley v. Mayo Foundation, 886 F.2d 161 (8th Cir.
1989). It is more accurate to describe the communication sent to
the defendant as a request for a waiver of formal service.
The request for waiver of service may be sent only to defendants
subject to service under subdivision (e), (f), or (h). The United
States is not expected to waive service for the reason that its
mail receiving facilities are inadequate to assure that the notice
is actually received by the correct person in the Department of
Justice. The same principle is applied to agencies, corporations,
and officers of the United States and to other governments and
entities subject to service under subdivision (j). Moreover, there
are policy reasons why governmental entities should not be
confronted with the potential for bearing costs of service in cases
in which they ultimately prevail. Infants or incompetent persons
likewise are not called upon to waive service because, due to their
presumed inability to understand the request and its consequences,
they must generally be served through fiduciaries.
It was unclear whether the former rule authorized mailing of a
request for "acknowledgement of service" to defendants outside the
forum state. See 1 R. Casad, Jurisdiction in Civil Actions (2d Ed.)
5-29, 30 (1991) and cases cited. But, as Professor Casad observed,
there was no reason not to employ this device in an effort to
obtain service outside the state, and there are many instances in
which it was in fact so used, with respect both to defendants
within the United States and to defendants in other countries.
The opportunity for waiver has distinct advantages to a foreign
defendant. By waiving service, the defendant can reduce the costs
that may ultimately be taxed against it if unsuccessful in the
lawsuit, including the sometimes substantial expense of translation
that may be wholly unnecessary for defendants fluent in English.
Moreover, a foreign defendant that waives service is afforded
substantially more time to defend against the action than if it had
been formally served: under Rule 12, a defendant ordinarily has
only 20 days after service in which to file its answer or raise
objections by motion, but by signing a waiver it is allowed 90 days
after the date the request for waiver was mailed in which to submit
its defenses. Because of the additional time needed for mailing and
the unreliability of some foreign mail services, a period of 60
days (rather than the 30 days required for domestic transmissions)
is provided for a return of a waiver sent to a foreign country.
It is hoped that, since transmission of the notice and waiver
forms is a private nonjudicial act, does not purport to effect
service, and is not accompanied by any summons or directive from a
court, use of the procedure will not offend foreign sovereignties,
even those that have withheld their assent to formal service by
mail or have objected to the "service-by-mail" provisions of the
former rule. Unless the addressee consents, receipt of the request
under the revised rule does not give rise to any obligation to
answer the lawsuit, does not provide a basis for default judgment,
and does not suspend the statute of limitations in those states
where the period continues to run until service. Nor are there any
adverse consequences to a foreign defendant, since the provisions
for shifting the expense of service to a defendant that declines to
waive service apply only if the plaintiff and defendant are both
located in the United States.
With respect to a defendant located in a foreign country like the
United Kingdom, which accepts documents in English, whose Central
Authority acts promptly in effecting service, and whose policies
discourage its residents from waiving formal service, there will be
little reason for a plaintiff to send the notice and request under
subdivision (d) rather than use convention methods. On the other
hand, the procedure offers significant potential benefits to a
plaintiff when suing a defendant that, though fluent in English, is
located in a country where, as a condition to formal service under
a convention, documents must be translated into another language or
where formal service will be otherwise costly or time-consuming.
Paragraph (1) is explicit that a timely waiver of service of a
summons does not prejudice the right of a defendant to object by
means of a motion authorized by Rule 12(b)(2) to the absence of
jurisdiction over the defendant's person, or to assert other
defenses that may be available. The only issues eliminated are
those involving the sufficiency of the summons or the sufficiency
of the method by which it is served.
Paragraph (2) states what the present rule implies: the defendant
has a duty to avoid costs associated with the service of a summons
not needed to inform the defendant regarding the commencement of an
action. The text of the rule also sets forth the requirements for a
Notice and Request for Waiver sufficient to put the cost-shifting
provision in place. These requirements are illustrated in Forms 1A
and 1B, which replace the former Form 18-A.
Paragraph (2)(A) is explicit that a request for waiver of service
by a corporate defendant must be addressed to a person qualified to
receive service. The general mail rooms of large organizations
cannot be required to identify the appropriate individual recipient
for an institutional summons.
Paragraph (2)(B) permits the use of alternatives to the United
States mails in sending the Notice and Request. While private
messenger services or electronic communications may be more
expensive than the mail, they may be equally reliable and on
occasion more convenient to the parties. Especially with respect to
transmissions to foreign countries, alternative means may be
desirable, for in some countries facsimile transmission is the most
efficient and economical means of communication. If electronic
means such as facsimile transmission are employed, the sender
should maintain a record of the transmission to assure proof of
transmission if receipt is denied, but a party receiving such a
transmission has a duty to cooperate and cannot avoid liability for
the resulting cost of formal service if the transmission is
prevented at the point of receipt.
A defendant failing to comply with a request for waiver shall be
given an opportunity to show good cause for the failure, but
sufficient cause should be rare. It is not a good cause for failure
to waive service that the claim is unjust or that the court lacks
jurisdiction. Sufficient cause not to shift the cost of service
would exist, however, if the defendant did not receive the request
or was insufficiently literate in English to understand it. It
should be noted that the provisions for shifting the cost of
service apply only if the plaintiff and the defendant are both
located in the United States, and accordingly a foreign defendant
need not show "good cause" for its failure to waive service.
Paragraph (3) extends the time for answer if, before being served
with process, the defendant waives formal service. The extension is
intended to serve as an inducement to waive service and to assure
that a defendant will not gain any delay by declining to waive
service and thereby causing the additional time needed to effect
service. By waiving service, a defendant is not called upon to
respond to the complaint until 60 days from the date the notice was
sent to it - 90 days if the notice was sent to a foreign country -
rather than within the 20 day period from date of service specified
in Rule 12.
Paragraph (4) clarifies the effective date of service when
service is waived; the provision is needed to resolve an issue
arising when applicable law requires service of process to toll the
statute of limitations. E.g., Morse v. Elmira Country Club, 752
F.2d 35 (2d Cir. 1984). Cf. Walker v. Armco Steel Corp., 446 U.S.
740 (1980).
The provisions in former subdivision (c)(2)(C)(ii) of this rule
may have been misleading to some parties. Some plaintiffs, not
reading the rule carefully, supposed that receipt by the defendant
of the mailed complaint had the effect both of establishing the
jurisdiction of the court over the defendant's person and of
tolling the statute of limitations in actions in which service of
the summons is required to toll the limitations period. The revised
rule is clear that, if the waiver is not returned and filed, the
limitations period under such a law is not tolled and the action
will not otherwise proceed until formal service of process is
effected.
Some state limitations laws may toll an otherwise applicable
statute at the time when the defendant receives notice of the
action. Nevertheless, the device of requested waiver of service is
not suitable if a limitations period which is about to expire is
not tolled by filing the action. Unless there is ample time, the
plaintiff should proceed directly to the formal methods for service
identified in subdivisions (e), (f), or (h).
The procedure of requesting waiver of service should also not be
used if the time for service under subdivision (m) will expire
before the date on which the waiver must be returned. While a
plaintiff has been allowed additional time for service in that
situation, e.g., Prather v. Raymond Constr. Co., 570 F. Supp. 278
(N.D. Ga. 1983), the court could refuse a request for additional
time unless the defendant appears to have evaded service pursuant
to subdivision (e) or (h). It may be noted that the presumptive
time limit for service under subdivision (m) does not apply to
service in a foreign country.
Paragraph (5) is a cost-shifting provision retained from the
former rule. The costs that may be imposed on the defendant could
include, for example, the cost of the time of a process server
required to make contact with a defendant residing in a guarded
apartment house or residential development. The paragraph is
explicit that the costs of enforcing the cost-shifting provision
are themselves recoverable from a defendant who fails to return the
waiver. In the absence of such a provision, the purpose of the rule
would be frustrated by the cost of its enforcement, which is likely
to be high in relation to the small benefit secured by the
plaintiff.
Some plaintiffs may send a notice and request for waiver and,
without waiting for return of the waiver, also proceed with efforts
to effect formal service on the defendant. To discourage this
practice, the cost-shifting provisions in paragraphs (2) and (5)
are limited to costs of effecting service incurred after the time
expires for the defendant to return the waiver. Moreover, by
returning the waiver within the time allowed and before being
served with process, a defendant receives the benefit of the longer
period for responding to the complaint afforded for waivers under
paragraph (3).
Subdivision (e). This subdivision replaces former subdivisions
(c)(2)(C)(i) and (d)(1). It provides a means for service of summons
on individuals within a judicial district of the United States.
Together with subdivision (f), it provides for service on persons
anywhere, subject to constitutional and statutory constraints.
Service of the summons under this subdivision does not
conclusively establish the jurisdiction of the court over the
person of the defendant. A defendant may assert the territorial
limits of the court's reach set forth in subdivision (k), including
the constitutional limitations that may be imposed by the Due
Process Clause of the Fifth Amendment.
Paragraph (1) authorizes service in any judicial district in
conformity with state law. This paragraph sets forth the language
of former subdivision (c)(2)(C)(i), which authorized the use of the
law of the state in which the district court sits, but adds as an
alternative the use of the law of the state in which the service is
effected.
Paragraph (2) retains the text of the former subdivision (d)(1)
and authorizes the use of the familiar methods of personal or abode
service or service on an authorized agent in any judicial district.
To conform to these provisions, the former subdivision (e)
bearing on proceedings against parties not found within the state
is stricken. Likewise stricken is the first sentence of the former
subdivision (f), which had restricted the authority of the federal
process server to the state in which the district court sits.
Subdivision (f). This subdivision provides for service on
individuals who are in a foreign country, replacing the former
subdivision (i) that was added to Rule 4 in 1963. Reflecting the
pattern of Rule 4 in incorporating state law limitations on the
exercise of jurisdiction over persons, the former subdivision (i)
limited service outside the United States to cases in which
extraterritorial service was authorized by state or federal law.
The new rule eliminates the requirement of explicit authorization.
On occasion, service in a foreign country was held to be improper
for lack of statutory authority. E.g., Martens v. Winder, 341 F.2d
197 (9th Cir.), cert. denied, 382 U.S. 937 (1965). This authority,
however, was found to exist by implication. E.g., SEC v. VTR, Inc.,
39 F.R.D. 19 (S.D.N.Y. 1966). Given the substantial increase in the
number of international transactions and events that are the
subject of litigation in federal courts, it is appropriate to infer
a general legislative authority to effect service on defendants in
a foreign country.
A secondary effect of this provision for foreign service of a
federal summons is to facilitate the use of federal long-arm law in
actions brought to enforce the federal law against defendants who
cannot be served under any state law but who can be
constitutionally subjected to the jurisdiction of the federal
court. Such a provision is set forth in paragraph (2) of
subdivision (k) of this rule, applicable only to persons not
subject to the territorial jurisdiction of any particular state.
Paragraph (1) gives effect to the Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents, which entered into
force for the United States on February 10, 1969. See 28 U.S.C.A.,
Fed.R.Civ.P. 4 (Supp. 1986). This Convention is an important means
of dealing with problems of service in a foreign country. See
generally 1 B. Ristau, International Judicial Assistance Secs.
4-1-1 to 4-5-2 (1990). Use of the Convention procedures, when
available, is mandatory if documents must be transmitted abroad to
effect service. See Volkswagenwerk Aktiengesellschaft v. Schlunk,
486 U.S. 694 (1988) (noting that voluntary use of these procedures
may be desirable even when service could constitutionally be
effected in another manner); J. Weis, The Federal Rules and the
Hague Conventions: Concerns of Conformity and Comity, 50 U. Pitt.
L. Rev. 903 (1989). Therefore, this paragraph provides that, when
service is to be effected outside a judicial district of the United
States, the methods of service appropriate under an applicable
treaty shall be employed if available and if the treaty so
requires.
The Hague Convention furnishes safeguards against the abridgment
of rights of parties through inadequate notice. Article 15 provides
for verification of actual notice or a demonstration that process
was served by a method prescribed by the internal laws of the
foreign state before a default judgment may be entered. Article 16
of the Convention also enables the judge to extend the time for
appeal after judgment if the defendant shows a lack of adequate
notice either to defend or to appeal the judgment, or has disclosed
a prima facie case on the merits.
The Hague Convention does not specify a time within which a
foreign country's Central Authority must effect service, but
Article 15 does provide that alternate methods may be used if a
Central Authority does not respond within six months. Generally, a
Central Authority can be expected to respond much more quickly than
that limit might permit, but there have been occasions when the
signatory state was dilatory or refused to cooperate for
substantive reasons. In such cases, resort may be had to the
provision set forth in subdivision (f)(3).
Two minor changes in the text reflect the Hague Convention.
First, the term "letter of request" has been added. Although these
words are synonymous with "letter rogatory," "letter of request" is
preferred in modern usage. The provision should not be interpreted
to authorize use of a letter of request when there is in fact no
treaty obligation on the receiving country to honor such a request
from this country or when the United States does not extend
diplomatic recognition to the foreign nation. Second, the passage
formerly found in subdivision (i)(1)(B), "when service in either
case is reasonably calculated to give actual notice," has been
relocated.
Paragraph (2) provides alternative methods for use when
internationally agreed methods are not intended to be exclusive, or
where there is no international agreement applicable. It contains
most of the language formerly set forth in subdivision (i) of the
rule. Service by methods that would violate foreign law is not
generally authorized. Subparagraphs (A) and (B) prescribe the more
appropriate methods for conforming to local practice or using a
local authority. Subparagraph (C) prescribes other methods
authorized by the former rule.
Paragraph (3) authorizes the court to approve other methods of
service not prohibited by international agreements. The Hague
Convention, for example, authorizes special forms of service in
cases of urgency if convention methods will not permit service
within the time required by the circumstances. Other circumstances
that might justify the use of additional methods include the
failure of the foreign country's Central Authority to effect
service within the six-month period provided by the Convention, or
the refusal of the Central Authority to serve a complaint seeking
punitive damages or to enforce the antitrust laws of the United
States. In such cases, the court may direct a special method of
service not explicitly authorized by international agreement if not
prohibited by the agreement. Inasmuch as our Constitution requires
that reasonable notice be given, an earnest effort should be made
to devise a method of communication that is consistent with due
process and minimizes offense to foreign law. A court may in some
instances specially authorize use of ordinary mail. Cf. Levin v.
Ruby Trading Corp., 248 F. Supp. 537 (S.D.N.Y. 1965).
Subdivision (g). This subdivision retains the text of former
subdivision (d)(2). Provision is made for service upon an infant or
incompetent person in a foreign country.
Subdivision (h). This subdivision retains the text of former
subdivision (d)(3), with changes reflecting those made in
subdivision (e). It also contains the provisions for service on a
corporation or association in a foreign country, as formerly found
in subdivision (i).
Frequent use should be made of the Notice and Request procedure
set forth in subdivision (d) in actions against corporations. Care
must be taken, however, to address the request to an individual
officer or authorized agent of the corporation. It is not effective
use of the Notice and Request procedure if the mail is sent
undirected to the mail room of the organization.
Subdivision (i). This subdivision retains much of the text of
former subdivisions (d)(4) and (d)(5). Paragraph (1) provides for
service of a summons on the United States; it amends former
subdivision (d)(4) to permit the United States attorney to be
served by registered or certified mail. The rule does not authorize
the use of the Notice and Request procedure of revised subdivision
(d) when the United States is the defendant. To assure proper
handling of mail in the United States attorney's office, the
authorized mail service must be specifically addressed to the civil
process clerk of the office of the United States attorney.
Paragraph (2) replaces former subdivision (d)(5). Paragraph (3)
saves the plaintiff from the hazard of losing a substantive right
because of failure to comply with the complex requirements of
multiple service under this subdivision. That risk has proved to be
more than nominal. E.g., Whale v. United States, 792 F.2d 951 (9th
Cir. 1986). This provision should be read in connection with the
provisions of subdivision (c) of Rule 15 to preclude the loss of
substantive rights against the United States or its agencies,
corporations, or officers resulting from a plaintiff's failure to
correctly identify and serve all the persons who should be named or
served.
Subdivision (j). This subdivision retains the text of former
subdivision (d)(6) without material change. The waiver-of-service
provision is also inapplicable to actions against governments
subject to service pursuant to this subdivision.
The revision adds a new paragraph (1) referring to the statute
governing service of a summons on a foreign state and its political
subdivisions, agencies, and instrumentalities, the Foreign
Sovereign Immunities Act of 1976, 28 U.S.C. Sec. 1608. The caption
of the subdivision reflects that change.
Subdivision (k). This subdivision replaces the former subdivision
(f), with no change in the title. Paragraph (1) retains the
substance of the former rule in explicitly authorizing the exercise
of personal jurisdiction over persons who can be reached under
state long-arm law, the "100-mile bulge" provision added in 1963,
or the federal interpleader act. Paragraph (1)(D) is new, but
merely calls attention to federal legislation that may provide for
nationwide or even world-wide service of process in cases arising
under particular federal laws. Congress has provided for nationwide
service of process and full exercise of territorial jurisdiction by
all district courts with respect to specified federal actions. See
1 R. Casad, Jurisdiction in Civil Actions (2d Ed.) chap. 5 (1991).
Paragraph (2) is new. It authorizes the exercise of territorial
jurisdiction over the person of any defendant against whom is made
a claim arising under any federal law if that person is subject to
personal jurisdiction in no state. This addition is a companion to
the amendments made in revised subdivisions (e) and (f).
This paragraph corrects a gap in the enforcement of federal law.
Under the former rule, a problem was presented when the defendant
was a non-resident of the United States having contacts with the
United States sufficient to justify the application of United
States law and to satisfy federal standards of forum selection, but
having insufficient contact with any single state to support
jurisdiction under state long-arm legislation or meet the
requirements of the Fourteenth Amendment limitation on state court
territorial jurisdiction. In such cases, the defendant was shielded
from the enforcement of federal law by the fortuity of a favorable
limitation on the power of state courts, which was incorporated
into the federal practice by the former rule. In this respect, the
revision responds to the suggestion of the Supreme Court made in
Omni Capital Int'l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 111
(1987).
There remain constitutional limitations on the exercise of
territorial jurisdiction by federal courts over persons outside the
United States. These restrictions arise from the Fifth Amendment
rather than from the Fourteenth Amendment, which limits state-court
reach and which was incorporated into federal practice by the
reference to state law in the text of the former subdivision (e)
that is deleted by this revision. The Fifth Amendment requires that
any defendant have affiliating contacts with the United States
sufficient to justify the exercise of personal jurisdiction over
that party. Cf. Wells Fargo & Co. v. Wells Fargo Express Co., 556
F.2d 406, 418 (9th Cir. 1977). There also may be a further Fifth
Amendment constraint in that a plaintiff's forum selection might be
so inconvenient to a defendant that it would be a denial of "fair
play and substantial justice" required by the due process clause,
even though the defendant had significant affiliating contacts with
the United States. See DeJames v. Magnificent Carriers, 654 F.2d
280, 286 n.3 (3rd Cir.), cert. denied, 454 U.S. 1085 (1981).
Compare World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
293-294 (1980); Insurance Corp. of Ireland v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 702-03 (1982); Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 476-78 (1985); Asahi Metal Indus. v.
Superior Court of Cal., Solano County, 480 U.S. 102, 108-13 (1987).
See generally R. Lusardi, Nationwide Service of Process: Due
Process Limitations on the Power of the Sovereign, 33 Vill. L. Rev.
1 (1988).
This provision does not affect the operation of federal venue
legislation. See generally 28 U.S.C. Sec. 1391. Nor does it affect
the operation of federal law providing for the change of venue. 28
U.S.C. Secs. 1404, 1406. The availability of transfer for fairness
and convenience under Sec. 1404 should preclude most conflicts
between the full exercise of territorial jurisdiction permitted by
this rule and the Fifth Amendment requirement of "fair play and
substantial justice."
The district court should be especially scrupulous to protect
aliens who reside in a foreign country from forum selections so
onerous that injustice could result. "[G]reat care and reserve
should be exercised when extending our notions of personal
jurisdiction into the international field." Asahi Metal Indus. v.
Superior Court of Cal., Solano County, 480 U.S. 102, 115 (1987),
quoting United States v. First Nat'l City Bank, 379 U.S. 378, 404
(1965) (Harlan, J., dissenting).
This narrow extension of the federal reach applies only if a
claim is made against the defendant under federal law. It does not
establish personal jurisdiction if the only claims are those
arising under state law or the law of another country, even though
there might be diversity or alienage subject matter jurisdiction as
to such claims. If, however, personal jurisdiction is established
under this paragraph with respect to a federal claim, then 28
U.S.C. Sec. 1367(a) provides supplemental jurisdiction over related
claims against that defendant, subject to the court's discretion to
decline exercise of that jurisdiction under 28 U.S.C. Sec. 1367(c).
Subdivision (l). This subdivision assembles in one place all the
provisions of the present rule bearing on proof of service. No
material change in the rule is effected. The provision that proof
of service can be amended by leave of court is retained from the
former subdivision (h). See generally 4A Wright & Miller, Federal
Practice and Procedure Sec. 1132 (2d ed. 1987).
Subdivision (m). This subdivision retains much of the language of
the present subdivision (j).
The new subdivision explicitly provides that the court shall
allow additional time if there is good cause for the plaintiff's
failure to effect service in the prescribed 120 days, and
authorizes the court to relieve a plaintiff of the consequences of
an application of this subdivision even if there is no good cause
shown. Such relief formerly was afforded in some cases, partly in
reliance on Rule 6(b). Relief may be justified, for example, if the
applicable statute of limitations would bar the refiled action, or
if the defendant is evading service or conceals a defect in
attempted service. E.g., Ditkof v. Owens-Illinois, Inc., 114 F.R.D.
104 (E.D. Mich. 1987). A specific instance of good cause is set
forth in paragraph (3) of this rule, which provides for extensions
if necessary to correct oversights in compliance with the
requirements of multiple service in actions against the United
States or its officers, agencies, and corporations. The district
court should also take care to protect pro se plaintiffs from
consequences of confusion or delay attending the resolution of an
in forma pauperis petition. Robinson v. America's Best Contacts &
Eyeglasses, 876 F.2d 596 (7th Cir. 1989).
The 1983 revision of this subdivision referred to the "party on
whose behalf such service was required," rather than to the
"plaintiff," a term used generically elsewhere in this rule to
refer to any party initiating a claim against a person who is not a
party to the action. To simplify the text, the revision returns to
the usual practice in the rule of referring simply to the plaintiff
even though its principles apply with equal force to defendants who
may assert claims against non-parties under Rules 13(h), 14, 19,
20, or 21.
Subdivision (n). This subdivision provides for in rem and
quasi-in-rem jurisdiction. Paragraph (1) incorporates any
requirements of 28 U.S.C. Sec. 1655 or similar provisions bearing
on seizures or liens.
Paragraph (2) provides for other uses of quasi-in-rem
jurisdiction but limits its use to exigent circumstances.
Provisional remedies may be employed as a means to secure
jurisdiction over the property of a defendant whose person is not
within reach of the court, but occasions for the use of this
provision should be rare, as where the defendant is a fugitive or
assets are in imminent danger of disappearing. Until 1963, it was
not possible under Rule 4 to assert jurisdiction in a federal court
over the property of a defendant not personally served. The 1963
amendment to subdivision (e) authorized the use of state law
procedures authorizing seizures of assets as a basis for
jurisdiction. Given the liberal availability of long-arm
jurisdiction, the exercise of power quasi-in-rem has become almost
an anachronism. Circumstances too spare to affiliate the defendant
to the forum state sufficiently to support long-arm jurisdiction
over the defendant's person are also inadequate to support seizure
of the defendant's assets fortuitously found within the state.
Shaffer v. Heitner, 433 U.S. 186 (1977).
COMMITTEE NOTES ON RULES - 2000 AMENDMENT
Paragraph (2)(B) is added to Rule 4(i) to require service on the
United States when a United States officer or employee is sued in
an individual capacity for acts or omissions occurring in
connection with duties performed on behalf of the United States.
Decided cases provide uncertain guidance on the question whether
the United States must be served in such actions. See Vaccaro v.
Dobre, 81 F.3d 854, 856-857 (9th Cir. 1996); Armstrong v. Sears, 33
F.3d 182, 185-187 (2d Cir. 1994); Ecclesiastical Order of the Ism
of Am v. Chasin, 845 F.2d 113, 116 (6th Cir. 1988); Light v. Wolf,
816 F.2d 746 (D.C. Cir. 1987); see also Simpkins v. District of
Columbia, 108 F.3d 366, 368-369 (D.C. Cir. 1997). Service on the
United States will help to protect the interest of the individual
defendant in securing representation by the United States, and will
expedite the process of determining whether the United States will
provide representation. It has been understood that the individual
defendant must be served as an individual defendant, a requirement
that is made explicit. Invocation of the individual service
provisions of subdivisions (e), (f), and (g) invokes also the
waiver-of-service provisions of subdivision (d).
Paragraph 2(B) reaches service when an officer or employee of the
United States is sued in an individual capacity "for acts or
omissions occurring in connection with the performance of duties on
behalf of the United States." This phrase has been chosen as a
functional phrase that can be applied without the occasionally
distracting associations of such phrases as "scope of employment,"
"color of office," or "arising out of the employment." Many actions
are brought against individual federal officers or employees of the
United States for acts or omissions that have no connection
whatever to their governmental roles. There is no reason to require
service on the United States in these actions. The connection to
federal employment that requires service on the United States must
be determined as a practical matter, considering whether the
individual defendant has reasonable grounds to look to the United
States for assistance and whether the United States has reasonable
grounds for demanding formal notice of the action.
An action against a former officer or employee of the United
States is covered by paragraph (2)(B) in the same way as an action
against a present officer or employee. Termination of the
relationship between the individual defendant and the United States
does not reduce the need to serve the United States.
Paragraph (3) is amended to ensure that failure to serve the
United States in an action governed by paragraph 2(B) does not
defeat an action. This protection is adopted because there will be
cases in which the plaintiff reasonably fails to appreciate the
need to serve the United States. There is no requirement, however,
that the plaintiff show that the failure to serve the United States
was reasonable. A reasonable time to effect service on the United
States must be allowed after the failure is pointed out. An
additional change ensures that if the United States or United
States attorney is served in an action governed by paragraph 2(A),
additional time is to be allowed even though no officer, employee,
agency, or corporation of the United States was served.
GAP Report. The most important changes were made to ensure that
no one would read the seemingly independent provisions of
paragraphs 2(A) and 2(B) to mean that service must be made twice
both on the United States and on the United States employee when
the employee is sued in both official and individual capacities.
The word "only" was added in subparagraph (A) and the new phrase
"whether or not the officer or employee is sued also in an
individual capacity" was inserted in subparagraph (B).
Minor changes were made to include "Employees" in the catchline
for subdivision (i), and to add "or employee" in paragraph 2(A).
Although it may seem awkward to think of suit against an employee
in an official capacity, there is no clear definition that
separates "officers" from "employees" for this purpose. The
published proposal to amend Rule 12(a)(3) referred to actions
against an employee sued in an official capacity, and it seemed
better to make the rules parallel by adding "employee" to Rule
4(i)(2)(A) than by deleting it from Rule 12(a)(3)(A).
AMENDMENT BY PUBLIC LAW
1983 - Subd. (a). Pub. L. 97-462, Sec. 2(1), substituted "deliver
the summons to the plaintiff or the plaintiff's attorney, who shall
be responsible for prompt service of the summons and a copy of the
complaint" for "deliver it for service to the marshal or to any
other person authorized by Rule 4(c) to serve it".
Subd. (c). Pub. L. 97-462, Sec. 2(2), substituted provision with
subd. heading "Service" for provision with subd. heading "By Whom
Served" which read: "Service of process shall be made by a United
States marshal, by his deputy, or by some person specially
appointed by the court for that purpose, except that a subpoena may
be served as provided in Rule 45. Special appointments to serve
process shall be made freely. Service of process may also be made
by a person authorized to serve process in an action brought in the
courts of general jurisdiction of the state in which the district
court is held or in which service is made."
Subd. (d). Pub. L. 97-462, Sec. 2(3), (4), substituted "Summons
and Complaint: Person to be Served" for "Summons: Personal Service"
in subd. heading.
Subd. (d)(5). Pub. L. 97-462, Sec. 2(4), substituted "sending a
copy of the summons and of the complaint by registered or certified
mail" for "delivering a copy of the summons and of the complaint".
Subd. (d)(7). Pub. L. 97-462, Sec. 2(3)(B), struck out par. (7)
which read: "Upon a defendant of any class referred to in paragraph
(1) or (3) of this subdivision of this rule, it is also sufficient
if the summons and complaint are served in the manner prescribed by
any statute of the United States or in the manner prescribed by the
law of the state in which the district court is held for the
service of summons or other like process upon any such defendant in
an action brought in the courts of general jurisdiction of that
state.". See subd. (c)(2)(C) of this rule.
Subd. (e). Pub. L. 97-462, Sec. 2(5), substituted "Summons" for
"Same" as subd. heading.
Subd. (g). Pub. L. 97-462, Sec. 2(6), substituted in second
sentence "deputy United States marshal" and "such person" for "his
deputy" and "he" and inserted third sentence "If service is made
under subdivision (c)(2)(C)(ii) of this rule, return shall be made
by the sender's filing with the court the acknowledgment received
pursuant to such subdivision.".
Subd. (j). Pub. L. 97-462, Sec. 2(7), added subd. (j).
EFFECTIVE DATE OF 1983 AMENDMENT
Amendment by Pub. L. 97-462 effective 45 days after Jan. 12,
1983, see section 4 of Pub. L. 97-462, set out as a note under
section 2071 of this title.
-End-
-CITE-
28 USC APPENDIX Rule 4.1 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
AND ORDERS
-HEAD-
Rule 4.1. Service of Other Process
-STATUTE-
(a) Generally. Process other than a summons as provided in Rule 4
or subpoena as provided in Rule 45 shall be served by a United
States marshal, a deputy United States marshal, or a person
specially appointed for that purpose, who shall make proof of
service as provided in Rule 4(l). The process may be served
anywhere within the territorial limits of the state in which the
district court is located, and, when authorized by a statute of the
United States, beyond the territorial limits of that state.
(b) Enforcement of Orders: Commitment for Civil Contempt. An
order of civil commitment of a person held to be in contempt of a
decree or injunction issued to enforce the laws of the United
States may be served and enforced in any district. Other orders in
civil contempt proceedings shall be served in the state in which
the court issuing the order to be enforced is located or elsewhere
within the United States if not more than 100 miles from the place
at which the order to be enforced was issued.
-SOURCE-
(As added Apr. 22, 1993, eff. Dec. 1, 1993.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1993
This is a new rule. Its purpose is to separate those few
provisions of the former Rule 4 bearing on matters other than
service of a summons to allow greater textual clarity in Rule 4.
Subdivision (a) contains no new language.
Subdivision (b) replaces the final clause of the penultimate
sentence of the former subdivision 4(f), a clause added to the rule
in 1963. The new rule provides for nationwide service of orders of
civil commitment enforcing decrees of injunctions issued to compel
compliance with federal law. The rule makes no change in the
practice with respect to the enforcement of injunctions or decrees
not involving the enforcement of federally-created rights.
Service of process is not required to notify a party of a decree
or injunction, or of an order that the party show cause why that
party should not be held in contempt of such an order. With respect
to a party who has once been served with a summons, the service of
the decree or injunction itself or of an order to show cause can be
made pursuant to Rule 5. Thus, for example, an injunction may be
served on a party through that person's attorney. Chagas v. United
States, 369 F.2d 643 (5th Cir. 1966). The same is true for service
of an order to show cause. Waffenschmidt v. Mackay, 763 F.2d 711
(5th Cir. 1985).
The new rule does not affect the reach of the court to impose
criminal contempt sanctions. Nationwide enforcement of federal
decrees and injunctions is already available with respect to
criminal contempt: a federal court may effect the arrest of a
criminal contemnor anywhere in the United States, 28 U.S.C. Sec.
3041, and a contemnor when arrested may be subject to removal to
the district in which punishment may be imposed. Fed. R. Crim. P.
40. Thus, the present law permits criminal contempt enforcement
against a contemnor wherever that person may be found.
The effect of the revision is to provide a choice of civil or
criminal contempt sanctions in those situations to which it
applies. Contempt proceedings, whether civil or criminal, must be
brought in the court that was allegedly defied by a contumacious
act. Ex parte Bradley, 74 U.S. 366 (1869). This is so even if the
offensive conduct or inaction occurred outside the district of the
court in which the enforcement proceeding must be conducted. E.g.,
McCourtney v. United States, 291 Fed. 497 (8th Cir.), cert. denied,
263 U.S. 714 (1923). For this purpose, the rule as before does not
distinguish between parties and other persons subject to contempt
sanctions by reason of their relation or connection to parties.
-End-
-CITE-
28 USC APPENDIX Rule 5 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
AND ORDERS
-HEAD-
Rule 5. Serving and Filing Pleadings and Other Papers
-STATUTE-
(a) Service: When Required. Except as otherwise provided in these
rules, every order required by its terms to be served, every
pleading subsequent to the original complaint unless the court
otherwise orders because of numerous defendants, every paper
relating to discovery required to be served upon a party unless the
court otherwise orders, every written motion other than one which
may be heard ex parte, and every written notice, appearance,
demand, offer of judgment, designation of record on appeal, and
similar paper shall be served upon each of the parties. No service
need be made on parties in default for failure to appear except
that pleadings asserting new or additional claims for relief
against them shall be served upon them in the manner provided for
service of summons in Rule 4.
In an action begun by seizure of property, in which no person
need be or is named as defendant, any service required to be made
prior to the filing of an answer, claim, or appearance shall be
made upon the person having custody or possession of the property
at the time of its seizure.
(b) Making Service.
(1) Service under Rules 5(a) and 77(d) on a party represented
by an attorney is made on the attorney unless the court orders
service on the party.
(2) Service under Rule 5(a) is made by:
(A) Delivering a copy to the person served by:
(i) handing it to the person;
(ii) leaving it at the person's office with a clerk or
other person in charge, or if no one is in charge leaving it
in a conspicuous place in the office; or
(iii) if the person has no office or the office is closed,
leaving it at the person's dwelling house or usual place of
abode with someone of suitable age and discretion residing
there.
(B) Mailing a copy to the last known address of the person
served. Service by mail is complete on mailing.
(C) If the person served has no known address, leaving a copy
with the clerk of the court.
(D) Delivering a copy by any other means, including
electronic means, consented to in writing by the person served.
Service by electronic means is complete on transmission;
service by other consented means is complete when the person
making service delivers the copy to the agency designated to
make delivery. If authorized by local rule, a party may make
service under this subparagraph (D) through the court's
transmission facilities.
(3) Service by electronic means under Rule 5(b)(2)(D) is not
effective if the party making service learns that the attempted
service did not reach the person to be served.
(c) Same: Numerous Defendants. In any action in which there are
unusually large numbers of defendants, the court, upon motion or of
its own initiative, may order that service of the pleadings of the
defendants and replies thereto need not be made as between the
defendants and that any cross-claim, counterclaim, or matter
constituting an avoidance or affirmative defense contained therein
shall be deemed to be denied or avoided by all other parties and
that the filing of any such pleading and service thereof upon the
plaintiff constitutes due notice of it to the parties. A copy of
every such order shall be served upon the parties in such manner
and form as the court directs.
(d) Filing; Certificate of Service. All papers after the
complaint required to be served upon a party, together with a
certificate of service, must be filed with the court within a
reasonable time after service, but disclosures under Rule 26(a)(1)
or (2) and the following discovery requests and responses must not
be filed until they are used in the proceeding or the court orders
filing: (i) depositions, (ii) interrogatories, (iii) requests for
documents or to permit entry upon land, and (iv) requests for
admission.
(e) Filing with the Court Defined. The filing of papers with the
court as required by these rules shall be made by filing them with
the clerk of court, except that the judge may permit the papers to
be filed with the judge, in which event the judge shall note
thereon the filing date and forthwith transmit them to the office
of the clerk. A court may by local rule permit papers to be filed,
signed, or verified by electronic means that are consistent with
technical standards, if any, that the Judicial Conference of the
United States establishes. A paper filed by electronic means in
compliance with a local rule constitutes a written paper for the
purpose of applying these rules. The clerk shall not refuse to
accept for filing any paper presented for that purpose solely
because it is not presented in proper form as required by these
rules or any local rules or practices.
-SOURCE-
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff.
July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff.
Dec. 1, 1993; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 17, 2000, eff.
Dec. 1, 2000; Apr. 23, 2001, eff. Dec. 1, 2001.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
Note to Subdivisions (a) and (b). Compare 2 Minn.Stat. (Mason,
1927) Secs. 9240, 9241, 9242; N.Y.C.P.A. (1937) Secs. 163, 164, and
N.Y.R.C.P. (1937) Rules 20, 21; 2 Wash.Rev.Stat.Ann. (Remington,
1932) Secs. 244-249.
Note to Subdivision (d). Compare the present practice under
[former] Equity Rule 12 (Issue of Subpoena - Time for Answer).
NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT
The words "affected thereby," stricken out by the amendment,
introduced a problem of interpretation. See 1 Barron & Holtzoff,
Federal Practice & Procedure 760-61 (Wright ed. 1960). The
amendment eliminates this difficulty and promotes full exchange of
information among the parties by requiring service of papers on all
the parties to the action, except as otherwise provided in the
rules. See also subdivision (c) of Rule 5. So, for example, a
third-party defendant is required to serve his answer to the
third-party complaint not only upon the defendant but also upon the
plaintiff. See amended Form 22-A and the Advisory Committee's Note
thereto.
As to the method of serving papers upon a party whose address is
unknown, see Rule 5(b).
NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT
The amendment makes clear that all papers relating to discovery
which are required to be served on any party must be served on all
parties, unless the court orders otherwise. The present language
expressly includes notices and demands, but it is not explicit as
to answers or responses as provided in Rules 33, 34, and 36.
Discovery papers may be voluminous or the parties numerous, and the
court is empowered to vary the requirement if in a given case it
proves needlessly onerous.
In actions begun by seizure of property, service will at times
have to be made before the absent owner of the property has filed
an appearance. For example, a prompt deposition may be needed in a
maritime action in rem. See Rules 30(a) and 30(b)(2) and the
related notes. A provision is added authorizing service on the
person having custody or possession of the property at the time of
its seizure.
NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT
Subdivision (d). By the terms of this rule and Rule 30(f)(1)
discovery materials must be promptly filed, although it often
happens that no use is made of the materials after they are filed.
Because the copies required for filing are an added expense and the
large volume of discovery filings presents serious problems of
storage in some districts, the Committee in 1978 first proposed
that discovery materials not be filed unless on order of the court
or for use in the proceedings. But such materials are sometimes of
interest to those who may have no access to them except by a
requirement of filing, such as members of a class, litigants
similarly situated, or the public generally. Accordingly, this
amendment and a change in Rule 30(f)(1) continue the requirement of
filing but make it subject to an order of the court that discovery
materials not be filed unless filing is requested by the court or
is effected by parties who wish to use the materials in the
proceeding.
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendments are technical. No substantive change is intended.
NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT
Subdivision (d). This subdivision is amended to require that the
person making service under the rule certify that service has been
effected. Such a requirement has generally been imposed by local
rule.
Having such information on file may be useful for many purposes,
including proof of service if an issue arises concerning the
effectiveness of the service. The certificate will generally
specify the date as well as the manner of service, but parties
employing private delivery services may sometimes be unable to
specify the date of delivery. In the latter circumstance, a
specification of the date of transmission of the paper to the
delivery service may be sufficient for the purposes of this rule.
Subdivision (e). The words "pleading and other" are stricken as
unnecessary. Pleadings are papers within the meaning of the rule.
The revision also accommodates the development of the use of
facsimile transmission for filing.
Several local district rules have directed the office of the
clerk to refuse to accept for filing papers not conforming to
certain requirements of form imposed by local rules or practice.
This is not a suitable role for the office of the clerk, and the
practice exposes litigants to the hazards of time bars; for these
reasons, such rules are proscribed by this revision. The
enforcement of these rules and of the local rules is a role for a
judicial officer. A clerk may of course advise a party or counsel
that a particular instrument is not in proper form, and may be
directed to so inform the court.
NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT
This is a technical amendment, using the broader language of Rule
25 of the Federal Rules of Appellate Procedure. The district court
- and the bankruptcy court by virtue of a cross-reference in
Bankruptcy Rule 7005 - can, by local rule, permit filing not only
by facsimile transmissions but also by other electronic means,
subject to standards approved by the Judicial Conference.
NOTES OF ADVISORY COMMITTEE ON RULES - 1996 AMENDMENT
The present Rule 5(e) has authorized filing by facsimile or other
electronic means on two conditions. The filing must be authorized
by local rule. Use of this means of filing must be authorized by
the Judicial Conference of the United States and must be consistent
with standards established by the Judicial Conference. Attempts to
develop Judicial Conference standards have demonstrated the value
of several adjustments in the rule.
The most significant change discards the requirement that the
Judicial Conference authorize local electronic filing rules. As
before, each district may decide for itself whether it has the
equipment and personnel required to establish electronic filing,
but a district that wishes to establish electronic filing need no
longer await Judicial Conference action.
The role of the Judicial Conference standards is clarified by
specifying that the standards are to govern technical matters.
Technical standards can provide nationwide uniformity, enabling
ready use of electronic filing without pausing to adjust for the
otherwise inevitable variations among local rules. Judicial
Conference adoption of technical standards should prove superior to
specification in these rules. Electronic technology has advanced
with great speed. The process of adopting Judicial Conference
standards should prove speedier and more flexible in determining
the time for the first uniform standards, in adjusting standards at
appropriate intervals, and in sparing the Supreme Court and
Congress the need to consider technological details. Until Judicial
Conference standards are adopted, however, uniformity will occur
only to the extent that local rules deliberately seek to copy other
local rules.
It is anticipated that Judicial Conference standards will govern
such technical specifications as data formatting, speed of
transmission, means to transmit copies of supporting documents, and
security of communication. Perhaps more important, standards must
be established to assure proper maintenance and integrity of the
record and to provide appropriate access and retrieval mechanisms.
Local rules must address these issues until Judicial Conference
standards are adopted.
The amended rule also makes clear the equality of filing by
electronic means with written filings. An electronic filing that
complies with the local rule satisfies all requirements for filing
on paper, signature, or verification. An electronic filing that
otherwise satisfies the requirements of 28 U.S.C. Sec. 1746 need
not be separately made in writing. Public access to electronic
filings is governed by the same rules as govern written filings.
The separate reference to filing by facsimile transmission is
deleted. Facsimile transmission continues to be included as an
electronic means.
COMMITTEE NOTES ON RULES - 2000 AMENDMENT
Subdivision (d). Rule 5(d) is amended to provide that disclosures
under Rule 26(a)(1) and (2), and discovery requests and responses
under Rules 30, 31, 33, 34, and 36 must not be filed until they are
used in the action. "Discovery requests" includes deposition
notices and "discovery responses" includes objections. The rule
supersedes and invalidates local rules that forbid, permit, or
require filing of these materials before they are used in the
action. The former Rule 26(a)(4) requirement that disclosures under
Rule 26(a)(1) and (2) be filed has been removed. Disclosures under
Rule 26(a)(3), however, must be promptly filed as provided in Rule
26(a)(3). Filings in connection with Rule 35 examinations, which
involve a motion proceeding when the parties do not agree, are
unaffected by these amendments.
Recognizing the costs imposed on parties and courts by required
filing of discovery materials that are never used in an action,
Rule 5(d) was amended in 1980 to authorize court orders that excuse
filing. Since then, many districts have adopted local rules that
excuse or forbid filing. In 1989 the Judicial Conference Local
Rules Project concluded that these local rules were inconsistent
with Rule 5(d), but urged the Advisory Committee to consider
amending the rule. Local Rules Project at 92 (1989). The Judicial
Conference of the Ninth Circuit gave the Committee similar advice
in 1997. The reality of nonfiling reflected in these local rules
has even been assumed in drafting the national rules. In 1993, Rule
30(f)(1) was amended to direct that the officer presiding at a
deposition file it with the court or send it to the attorney who
arranged for the transcript or recording. The Committee Note
explained that this alternative to filing was designed for "courts
which direct that depositions not be automatically filed." Rule
30(f)(1) has been amended to conform to this change in Rule 5(d).
Although this amendment is based on widespread experience with
local rules, and confirms the results directed by these local
rules, it is designed to supersede and invalidate local rules.
There is no apparent reason to have different filing rules in
different districts. Even if districts vary in present capacities
to store filed materials that are not used in an action, there is
little reason to continue expending court resources for this
purpose. These costs and burdens would likely change as parties
make increased use of audio- and videotaped depositions. Equipment
to facilitate review and reproduction of such discovery materials
may prove costly to acquire, maintain, and operate.
The amended rule provides that discovery materials and
disclosures under Rule 26(a)(1) and (a)(2) must not be filed until
they are "used in the proceeding." This phrase is meant to refer to
proceedings in court. This filing requirement is not triggered by
"use" of discovery materials in other discovery activities, such as
depositions. In connection with proceedings in court, however, the
rule is to be interpreted broadly; any use of discovery materials
in court in connection with a motion, a pretrial conference under
Rule 16, or otherwise, should be interpreted as use in the
proceeding.
Once discovery or disclosure materials are used in the
proceeding, the filing requirements of Rule 5(d) should apply to
them. But because the filing requirement applies only with regard
to materials that are used, only those parts of voluminous
materials that are actually used need be filed. Any party would be
free to file other pertinent portions of materials that are so
used. See Fed. R. Evid. 106; cf. Rule 32(a)(4). If the parties are
unduly sparing in their submissions, the court may order further
filings. By local rule, a court could provide appropriate direction
regarding the filing of discovery materials, such as depositions,
that are used in proceedings.
"Shall" is replaced by "must" under the program to conform
amended rules to current style conventions when there is no
ambiguity.
GAP Report. The Advisory Committee recommends no changes to
either the amendments to Rule 5(d) or the Committee Note as
published.
COMMITTEE NOTES ON RULES - 2001 AMENDMENT
Rule 5(b) is restyled.
Rule 5(b)(1) makes it clear that the provision for service on a
party's attorney applies only to service made under Rules 5(a) and
77(d). Service under Rules 4, 4.1, 45(b), and 71A(d)(3) - as well
as rules that invoke those rules - must be made as provided in
those rules.
Subparagraphs (A), (B), and (C) of Rule 5(b)(2) carry forward the
method-of-service provisions of former Rule 5(b).
Subparagraph (D) of Rule 5(b)(2) is new. It authorizes service by
electronic means or any other means, but only if consent is
obtained from the person served. The consent must be express, and
cannot be implied from conduct. Early experience with electronic
filing as authorized by Rule 5(d) is positive, supporting service
by electronic means as well. Consent is required, however, because
it is not yet possible to assume universal entry into the world of
electronic communication. Subparagraph (D) also authorizes service
by nonelectronic means. The Rule 5(b)(2)(B) provision making mail
service complete on mailing is extended in subparagraph (D) to make
service by electronic means complete on transmission; transmission
is effected when the sender does the last act that must be
performed by the sender. Service by other agencies is complete on
delivery to the designated agency.
Finally, subparagraph (D) authorizes adoption of local rules
providing for service through the court. Electronic case filing
systems will come to include the capacity to make service by using
the court's facilities to transmit all documents filed in the case.
It may prove most efficient to establish an environment in which a
party can file with the court, making use of the court's
transmission facilities to serve the filed paper on all other
parties. Transmission might be by such means as direct transmission
of the paper, or by transmission of a notice of filing that
includes an electronic link for direct access to the paper. Because
service is under subparagraph (D), consent must be obtained from
the persons served.
Consent to service under Rule 5(b)(2)(D) must be in writing,
which can be provided by electronic means. Parties are encouraged
to specify the scope and duration of the consent. The specification
should include at least the persons to whom service should be made,
the appropriate address or location for such service - such as the
e-mail address or facsimile machine number, and the format to be
used for attachments. A district court may establish a registry or
other facility that allows advance consent to service by specified
means for future actions.
Rule 6(e) is amended to allow additional time to respond when
service is made under Rule 5(b)(2)(D). The additional time does not
relieve a party who consents to service under Rule 5(b)(2)(D) of
the responsibilities to monitor the facility designated for
receiving service and to provide prompt notice of any address
change.
Paragraph (3) addresses a question that may arise from a literal
reading of the provision that service by electronic means is
complete on transmission. Electronic communication is rapidly
improving, but lawyers report continuing failures of transmission,
particularly with respect to attachments. Ordinarily the risk of
non-receipt falls on the person being served, who has consented to
this form of service. But the risk should not extend to situations
in which the person attempting service learns that the attempted
service in fact did not reach the person to be served. Given actual
knowledge that the attempt failed, service is not effected. The
person attempting service must either try again or show
circumstances that justify dispensing with service.
Paragraph (3) does not address the similar questions that may
arise when a person attempting service learns that service by means
other than electronic means in fact did not reach the person to be
served. Case law provides few illustrations of circumstances in
which a person attempting service actually knows that the attempt
failed but seeks to act as if service had been made. This negative
history suggests there is no need to address these problems in Rule
5(b)(3). This silence does not imply any view on these issues, nor
on the circumstances that justify various forms of judicial action
even though service has not been made.
Changes Made After Publication and Comments Rule 5(b)(2)(D) was
changed to require that consent be "in writing."
Rule 5(b)(3) is new. The published proposal did not address the
question of failed service in the text of the rule. Instead, the
Committee Note included this statement: "As with other modes of
service, however, actual notice that the transmission was not
received defeats the presumption of receipt that arises from the
provision that service is complete on transmission. The sender must
take additional steps to effect service. Service by other agencies
is complete on delivery to the designated agency." The addition of
paragraph (3) was prompted by consideration of the draft Appellate
Rule 25(c) that was prepared for the meeting of the Appellate Rules
Advisory Committee. This draft provided: "Service by electronic
means is complete on transmission, unless the party making service
is notified that the paper was not received." Although Appellate
Rule 25(c) is being prepared for publication and comment, while
Civil Rule 5(b) has been published and otherwise is ready to
recommend for adoption, it seemed desirable to achieve some
parallel between the two rules.
The draft Rule 5(b)(3) submitted for consideration by the
Advisory Committee covered all means of service except for leaving
a copy with the clerk of the court when the person to be served has
no known address. It was not limited to electronic service for fear
that a provision limited to electronic service might generate
unintended negative implications as to service by other means,
particularly mail. This concern was strengthened by a small number
of opinions that say that service by mail is effective, because
complete on mailing, even when the person making service has prompt
actual notice that the mail was not delivered. The Advisory
Committee voted to limit Rule 5(b)(3) to service by electronic
means because this means of service is relatively new, and seems
likely to miscarry more frequently than service by post. It was
suggested during the Advisory Committee meeting that the question
of negative implication could be addressed in the Committee Note.
There was little discussion of this possibility. The Committee Note
submitted above includes a "no negative implications" paragraph
prepared by the Reporter for consideration by the Standing
Committee.
The Advisory Committee did not consider at all a question that
was framed during the later meeting of the Appellate Rules Advisory
Committee. As approved by the Advisory Committee, Rule 5(b)(3)
defeats service by electronic means "if the party making service
learns that the attempted service did not reach the person to be
served." It says nothing about the time relevant to learning of the
failure. The omission may seem glaring. Curing the omission,
however, requires selection of a time. As revised, proposed
Appellate Rule 25(c) requires that the party making service learn
of the failure within three calendar days. The Appellate Rules
Advisory Committee will have the luxury of public comment and
another year to consider the desirability of this short period. If
Civil Rule 5(b) is to be recommended for adoption now, no such
luxury is available. This issue deserves careful consideration by
the Standing Committee.
Several changes are made in the Committee Note. (1) It requires
that consent "be express, and cannot be implied from conduct." This
addition reflects a more general concern stimulated by a reported
ruling that an e-mail address on a firm's letterhead implied
consent to email service. (2) The paragraph discussing service
through the court's facilities is expanded by describing
alternative methods, including an "electronic link." (3) There is a
new paragraph that states that the requirement of written consent
can be satisfied by electronic means, and that suggests matters
that should be addressed by the consent. (4) A paragraph is added
to note the additional response time provided by amended Rule 6(e).
(5) The final two paragraphs address newly added Rule 5(b)(3). The
first explains the rule that electronic service is not effective if
the person making service learns that it did not reach the person
to be served. The second paragraph seeks to defeat any negative
implications that might arise from limiting Rule 5(b)(3) to
electronic service, not mail, not other means consented to such as
commercial express service, and not service on another person on
behalf of the person to be served.
RULE 6(E)
The Advisory Committee recommended that no change be made in
Civil Rule 6(e) to reflect the provisions of Civil Rule 5(b)(2)(D)
that, with the consent of the person to be served, would allow
service by electronic or other means. Absent change, service by
these means would not affect the time for acting in response to the
paper served. Comment was requested, however, on the alternative
that would allow an additional 3 days to respond. The alternative
Rule 6(e) amendments are cast in a form that permits ready
incorporation in the Bankruptcy Rules. Several of the comments
suggest that the added three days should be provided. Electronic
transmission is not always instantaneous, and may fail for any of a
number of reasons. It may take three days to arrange for
transmission in readable form. Providing added time to respond will
not discourage people from asking for consent to electronic
transmission, and may encourage people to give consent. The more
who consent, the quicker will come the improvements that will make
electronic service ever more attractive. Consistency with the
Bankruptcy Rules will be a good thing, and the Bankruptcy Rules
Advisory Committee believes the additional three days should be
allowed.
-End-
-CITE-
28 USC APPENDIX Rule 6 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
AND ORDERS
-HEAD-
Rule 6. Time
-STATUTE-
(a) Computation. In computing any period of time prescribed or
allowed by these rules, by the local rules of any district court,
by order of court, or by any applicable statute, the day of the
act, event, or default from which the designated period of time
begins to run shall not be included. The last day of the period so
computed shall be included, unless it is a Saturday, a Sunday, or a
legal holiday, or, when the act to be done is the filing of a paper
in court, a day on which weather or other conditions have made the
office of the clerk of the district court inaccessible, in which
event the period runs until the end of the next day which is not
one of the aforementioned days. When the period of time prescribed
or allowed is less than 11 days, intermediate Saturdays, Sundays,
and legal holidays shall be excluded in the computation. As used in
this rule and in Rule 77(c), "legal holiday" includes New Year's
Day, Birthday of Martin Luther King, Jr., Washington's Birthday,
Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans
Day, Thanksgiving Day, Christmas Day, and any other day appointed
as a holiday by the President or the Congress of the United States,
or by the state in which the district court is held.
(b) Enlargement. When by these rules or by a notice given
thereunder or by order of court an act is required or allowed to be
done at or within a specified time, the court for cause shown may
at any time in its discretion (1) with or without motion or notice
order the period enlarged if request therefor is made before the
expiration of the period originally prescribed or as extended by a
previous order, or (2) upon motion made after the expiration of the
specified period permit the act to be done where the failure to act
was the result of excusable neglect; but it may not extend the time
for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b),
(d) and (e), and 60(b), except to the extent and under the
conditions stated in them.
[(c) Unaffected by Expiration of Term.] (Rescinded Feb. 28, 1966,
eff. July 1, 1966)
(d) For Motions - Affidavits. A written motion, other than one
which may be heard ex parte, and notice of the hearing thereof
shall be served not later than 5 days before the time specified for
the hearing, unless a different period is fixed by these rules or
by order of the court. Such an order may for cause shown be made on
ex parte application. When a motion is supported by affidavit, the
affidavit shall be served with the motion; and, except as otherwise
provided in Rule 59(c), opposing affidavits may be served not later
than 1 day before the hearing, unless the court permits them to be
served at some other time.
(e) Additional Time After Service Under Rule 5(b)(2)(B), (C), or
(D). Whenever a party has the right or is required to do some act
or take some proceedings within a prescribed period after the
service of a notice or other paper upon the party and the notice or
paper is served upon the party under Rule 5(b)(2)(B), (C), or (D),
3 days shall be added to the prescribed period.
-SOURCE-
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff.
July 1, 1968; Mar. 1, 1971, eff. July 1, 1971; Apr. 28, 1983, eff.
Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 26, 1999, eff. Dec. 1, 1999; Apr. 23, 2001, eff.
Dec. 1, 2001.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
Note to Subdivisions (a) and (b). These are amplifications along
lines common in state practices, of [former] Equity Rule 80
(Computation of Time - Sundays and Holidays) and of the provisions
for enlargement of time found in [former] Equity Rules 8
(Enforcement of Final Decrees) and 16 (Defendant to Answer -
Default - Decree Pro Confesso). See also Rule XIII, Rules and Forms
in Criminal Cases, 292 U.S. 661, 666 (1934). Compare Ala.Code Ann.
(Michie, 1928) Sec. 13 and former Law Rule 8 of the Rules of the
Supreme Court of the District of Columbia (1924), superseded in
1929 by Law Rule 8, Rules of the District Court of the United
States for the District of Columbia (1937).
Note to Subdivision (c). This eliminates the difficulties caused
by the expiration of terms of court. Such statutes as U.S.C. Title
28, [former] Sec. 12 (Trials not discontinued by new term) are not
affected. Compare Rules of the United States District Court of
Minnesota, Rule 25 (Minn.Stat. (Mason, Supp. 1936), p. 1089).
Note to Subdivision (d). Compare 2 Minn.Stat. (Mason, 1927) Sec.
9246; N.Y.R.C.P. (1937) Rules 60 and 64.
NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT
Subdivision (b). The purpose of the amendment is to clarify the
finality of judgments. Prior to the advent of the Federal Rules of
Civil Procedure, the general rule that a court loses jurisdiction
to disturb its judgments, upon the expiration of the term at which
they were entered, had long been the classic device which (together
with the statutory limits on the time for appeal) gave finality to
judgments. See Note to Rule 73(a). Rule 6(c) abrogates that limit
on judicial power. That limit was open to many objections, one of
them being inequality of operation because, under it, the time for
vacating a judgment rendered early in a term was much longer than
for a judgment rendered near the end of the term.
The question to be met under Rule 6(b) is: how far should the
desire to allow correction of judgments be allowed to postpone
their finality? The rules contain a number of provisions permitting
the vacation or modification of judgments on various grounds. Each
of these rules contains express time limits on the motions for
granting of relief. Rule 6(b) is a rule of general application
giving wide discretion to the court to enlarge these time limits or
revive them after they have expired, the only exceptions stated in
the original rule being a prohibition against enlarging the time
specified in Rule 59(b) and (d) for making motions for or granting
new trials, and a prohibition against enlarging the time fixed by
law for taking an appeal. It should also be noted that Rule 6(b)
itself contains no limitation of time within which the court may
exercise its discretion, and since the expiration of the term does
not end its power, there is now no time limit on the exercise of
its discretion under Rule 6(b).
Decisions of lower federal courts suggest that some of the rules
containing time limits which may be set aside under Rule 6(b) are
Rules 25, 50(b), 52(b), 60(b), and 73(g).
In a number of cases the effect of Rule 6(b) on the time
limitations of these rules has been considered. Certainly the rule
is susceptible of the interpretation that the court is given the
power in its discretion to relieve a party from failure to act
within the times specified in any of these other rules, with only
the exceptions stated in Rule 6(b), and in some cases the rule has
been so construed.
With regard to Rule 25(a) for substitution, it was held in
Anderson v. Brady (E.D.Ky. 1941) 4 Fed.Rules Service 25a.1, Case 1,
and in Anderson v. Yungkau (C.C.A. 6th, 1946) 153 F.(2d) 685, cert.
granted (1946) 66 S.Ct. 1025, that under Rule 6(b) the court had no
authority to allow substitution of parties after the expiration of
the limit fixed in Rule 25(a).
As to Rules 50(b) for judgments notwithstanding the verdict and
52(b) for amendment of findings and vacation of judgment, it was
recognized in Leishman v. Associated Wholesale Electric Co. (1943)
318 U.S. 203, that Rule 6(b) allowed the district court to enlarge
the time to make a motion for amended findings and judgment beyond
the limit expressly fixed in Rule 52(b). See Coca-Cola v. Busch
(E.D.Pa. 1943) 7 Fed.Rules Service 59b.2, Case 4. Obviously, if the
time limit in Rule 52(b) could be set aside under Rule 6(b), the
time limit in Rule 50(b) for granting judgment notwithstanding the
verdict (and thus vacating the judgment entered "forthwith" on the
verdict) likewise could be set aside.
As to Rule 59 on motions for a new trial, it has been settled
that the time limits in Rule 59(b) and (d) for making motions for
or granting new trial could not be set aside under Rule 6(b),
because Rule 6(b) expressly refers to Rule 59, and forbids it. See
Safeway Stores, Inc. v. Coe (App.D.C. 1943) 136 F.(2d) 771; Jusino
v. Morales & Tio (C.C.A. 1st, 1944) 139 F.(2d) 946; Coca-Cola Co.
v. Busch (E.D.Pa. 1943) 7 Fed.Rules Service 59b.2, Case 4; Peterson
v. Chicago Great Western Ry. Co. (D.Neb. 1943) 7 Fed.Rules Service
59b.2, Case 1; Leishman v. Associated Wholesale Electric Co. (1943)
318 U.S. 203.
As to Rule 60(b) for relief from a judgment, it was held in
Schram v. O'Connor (E.D.Mich. 1941) 5 Fed.Rules Serv. 6b.31, Case
1, 2 F.R.D. 192, s. c. 5 Fed.Rules Serv. 6b.31, Case 2, F.R.D. 192,
that the six-months time limit in original Rule 60(b) for making a
motion for relief from a judgment for surprise, mistake, or
excusable neglect could be set aside under Rule 6(b). The contrary
result was reached in Wallace v. United States (C.C.A.2d, 1944) 142
F.(2d) 240, cert. den. (1944) 323 U.S. 712; Reed v. South Atlantic
Steamship Co. of Del. (D.Del. 1942) 6 Fed.Rules Serv. 60b.31, Case
1.
As to Rule 73(g), fixing the time for docketing an appeal, it was
held in Ainsworth v. Gill Glass & Fixture Co. (C.C.A.3d, 1939) 104
F.(2d) 83, that under Rule 6(b) the district court, upon motion
made after the expiration of the forty-day period, stated in Rule
73(g), but before the expiration of the ninety-day period therein
specified, could permit the docketing of the appeal on a showing of
excusable neglect. The contrary was held in Mutual Benefit Health &
Accident Ass'n v. Snyder (C.C.A. 6th, 1940) 109 F.(2d) 469 and in
Burke v. Canfield (App.D.C. 1940) 111 F.(2d) 526.
The amendment of Rule 6(b) now proposed is based on the view that
there should be a definite point where it can be said a judgment is
final; that the right method of dealing with the problem is to list
in Rule 6(b) the various other rules whose time limits may not be
set aside, and then, if the time limit in any of those other rules
is too short, to amend that other rule to give a longer time. The
further argument is that Rule 6(c) abolished the long standing
device to produce finality in judgments through expiration of the
term, and since that limitation on the jurisdiction of courts to
set aside their own judgments has been removed by Rule 6(c), some
other limitation must be substituted or judgments never can be said
to be final.
In this connection reference is made to the established rule that
if a motion for new trial is seasonably made, the mere making or
pendency of the motion destroys the finality of the judgment, and
even though the motion is ultimately denied, the full time for
appeal starts anew from the date of denial. Also, a motion to amend
the findings under Rule 52(b) has the same effect on the time for
appeal. Leishman v. Associated Wholesale Electric Co. (1943) 318
U.S. 203. By the same reasoning a motion for judgment under Rule
50(b), involving as it does the vacation of a judgment entered
"forthwith" on the verdict (Rule 58), operates to postpone, until
an order is made, the running of the time for appeal. The Committee
believes that the abolition by Rule 6(c) of the old rule that a
court's power over its judgments ends with the term, requires a
substitute limitation, and that unless Rule 6(b) is amended to
prevent enlargement of the times specified in Rules 50(b), 52(b)
and 60(b), and the limitation as to Rule 59(b) and (d) is retained,
no one can say when a judgment is final. This is also true with
regard to proposed Rule 59(e), which authorizes a motion to alter
or amend a judgment, hence that rule is also included in the
enumeration in amended Rule 6(b). In consideration of the
amendment, however, it should be noted that Rule 60(b) is also to
be amended so as to lengthen the six-months period originally
prescribed in that rule to one year.
As to Rule 25 on substitution, while finality is not involved,
the limit there fixed should be controlling. That rule, as amended,
gives the court power, upon showing of a reasonable excuse, to
permit substitution after the expiration of the two-year period.
As to Rule 73(g), it is believed that the conflict in decisions
should be resolved and not left to further litigation, and that the
rule should be listed as one whose limitation may not be set aside
under Rule 6(b).
As to Rule 59(c), fixing the time for serving affidavits on
motion for new trial, it is believed that the court should have
authority under Rule 6(b) to enlarge the time, because, once the
motion for new trial is made, the judgment no longer has finality,
and the extension of time for affidavits thus does not of itself
disturb finality.
Other changes proposed in Rule 6(b) are merely clarifying and
conforming. Thus "request" is substituted for "application" in
clause (1) because an application is defined as a motion under Rule
7(b). The phrase "extend the time" is substituted for "enlarge the
period" because the former is a more suitable expression and
relates more clearly to both clauses (1) and (2). The final phrase
in Rule 6(b), "or the period for taking an appeal as provided by
law", is deleted and a reference to Rule 73(a) inserted, since it
is proposed to state in that rule the time for appeal to a circuit
court of appeals, which is the only appeal governed by the Federal
Rules, and allows an extension of time. See Rule 72.
Subdivision (c). The purpose of this amendment is to prevent
reliance upon the continued existence of a term as a source of
power to disturb the finality of a judgment upon grounds other than
those stated in these rules. See Hill v. Hawes (1944) 320 U.S. 520;
Boaz v. Mutual Life Ins. Co. of New York (C.C.A. 8th, 1944) 146
F.(2d) 321; Bucy v. Nevada Construction Co. (C.C.A. 9th, 1942) 125
F.(2d) 213.
NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT
Subdivision (a). This amendment is related to the amendment of
Rule 77(c) changing the regulation of the days on which the clerk's
office shall be open.
The wording of the first sentence of Rule 6(a) is clarified and
the subdivision is made expressly applicable to computing periods
of time set forth in local rules.
Saturday is to be treated in the same way as Sunday or a "legal
holiday" in that it is not to be included when it falls on the last
day of a computed period, nor counted as an intermediate day when
the period is less than 7 days. "Legal holiday" is defined for
purposes of this subdivision and amended Rule 77(c). Compare the
definition of "holiday" in 11 U.S.C. Sec. 1(18); also 5 U.S.C. Sec.
86a; Executive Order No. 10358, "Observance of Holidays," June 9,
1952, 17 Fed.Reg. 5269. In the light of these changes the last
sentence of the present subdivision, dealing with half holidays, is
eliminated.
With Saturdays and State holidays made "dies non" in certain
cases by the amended subdivision, computation of the usual 5-day
notice of motion or the 2-day notice to dissolve or modify a
temporary restraining order may work out so as to cause
embarrassing delay in urgent cases. The delay can be obviated by
applying to the court to shorten the time, see Rules 6(d) and
65(b).
Subdivision (b). The prohibition against extending the time for
taking action under Rule 25 (Substitution of parties) is
eliminated. The only limitation of time provided for in amended
Rule 25 is the 90-day period following a suggestion upon the record
of the death of a party within which to make a motion to substitute
the proper parties for the deceased party. See Rule 25(a)(1), as
amended, and the Advisory Committee's Note thereto. It is intended
that the court shall have discretion to enlarge that period.
NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT
The amendment eliminates the references to Rule 73, which is to
be abrogated.
P. L. 88-139, Sec. 1, 77 Stat. 248, approved on October 16, 1963,
amended 28 U.S.C. Sec. 138 to read as follows: "The district court
shall not hold formal terms." Thus Rule 6(c) is rendered
unnecessary, and it is rescinded.
NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT
The amendment adds Columbus Day to the list of legal holidays to
conform the subdivision to the Act of June 28, 1968, 82 Stat. 250,
which constituted Columbus Day a legal holiday effective after
January 1, 1971.
The Act, which amended Title 5, U.S.C., Sec. 6103(a), changes the
day on which certain holidays are to be observed. Washington's
Birthday, Memorial Day and Veterans Day are to be observed on the
third Monday in February, the last Monday in May and the fourth
Monday in October, respectively, rather than, as heretofore, on
February 22, May 30, and November 11, respectively. Columbus Day is
to be observed on the second Monday in October. New Year's Day,
Independence Day, Thanksgiving Day and Christmas continue to be
observed on the traditional days.
NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT
Subdivision (b). The amendment confers finality upon the
judgments of magistrates by foreclosing enlargement of the time for
appeal except as provided in new Rule 74(a) (20 day period for
demonstration of excusable neglect).
NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT
Rule 6(a) is amended to acknowledge that weather conditions or
other events may render the clerk's office inaccessible one or more
days. Parties who are obliged to file something with the court
during that period should not be penalized if they cannot do so.
The amendment conforms to changes made in Federal Rule of Criminal
Procedure 45(a), effective August 1, 1982.
The Rule also is amended to extend the exclusion of intermediate
Saturdays, Sundays, and legal holidays to the computation of time
periods less than 11 days. Under the current version of the Rule,
parties bringing motions under rules with 10-day periods could have
as few as 5 working days to prepare their motions. This hardship
would be especially acute in the case of Rules 50(b) and (c)(2),
52(b), and 59(b), (d), and (e), which may not be enlarged at the
discretion of the court. See Rule 6(b). If the exclusion of
Saturdays, Sundays, and legal holidays will operate to cause
excessive delay in urgent cases, the delay can be obviated by
applying to the court to shorten the time, See Rule 6(b).
The Birthday of Martin Luther King, Jr., which becomes a legal
holiday effective in 1986, has been added to the list of legal
holidays enumerated in the Rule.
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendments are technical. No substantive change is intended.
COMMITTEE NOTES ON RULES - 1999 AMENDMENT
The reference to Rule 74(a) is stricken from the catalogue of
time periods that cannot be extended by the district court. The
change reflects the 1997 abrogation of Rule 74(a).
COMMITTEE NOTES ON RULES - 2001 AMENDMENT
The additional three days provided by Rule 6(e) is extended to
the means of service authorized by the new paragraph (D) added to
Rule 5(b), including - with the consent of the person served -
service by electronic or other means. The three-day addition is
provided as well for service on a person with no known address by
leaving a copy with the clerk of the court.
Changes Made After Publication and Comments Proposed Rule 6(e) is
the same as the "alternative proposal" that was published in August
1999.
-End-
-CITE-
28 USC APPENDIX III. PLEADINGS AND MOTIONS 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
III. PLEADINGS AND MOTIONS
-HEAD-
III. PLEADINGS AND MOTIONS
-End-
-CITE-
28 USC APPENDIX Rule 7 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
III. PLEADINGS AND MOTIONS
-HEAD-
Rule 7. Pleadings Allowed; Form of Motions
-STATUTE-
(a) Pleadings. There shall be a complaint and an answer; a reply
to a counterclaim denominated as such; an answer to a cross-claim,
if the answer contains a cross-claim; a third-party complaint, if a
person who was not an original party is summoned under the
provisions of Rule 14; and a third-party answer, if a third-party
complaint is served. No other pleading shall be allowed, except
that the court may order a reply to an answer or a third-party
answer.
(b) Motions and Other Papers.
(1) An application to the court for an order shall be by motion
which, unless made during a hearing or trial, shall be made in
writing, shall state with particularity the grounds therefor, and
shall set forth the relief or order sought. The requirement of
writing is fulfilled if the motion is stated in a written notice
of the hearing of the motion.
(2) The rules applicable to captions and other matters of form
of pleadings apply to all motions and other papers provided for
by these rules.
(3) All motions shall be signed in accordance with Rule 11.
(c) Demurrers, Pleas, Etc., Abolished. Demurrers, pleas, and
exceptions for insufficiency of a pleading shall not be used.
-SOURCE-
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
July 1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
1. A provision designating pleadings and defining a motion is
common in the State practice acts. See Ill.Rev.Stat. (1937), ch.
110, Sec. 156 (Designation and order of pleadings); 2 Minn.Stat.
(Mason, 1927) Sec. 9246 (Definition of motion); and N.Y.C.P.A.
(1937) Sec. 113 (Definition of motion). Former Equity Rules 18
(Pleadings - Technical Forms Abrogated), 29 (Defenses - How
Presented), and 33 (Testing Sufficiency of Defense) abolished
technical forms of pleading, demurrers, and pleas, and exceptions
for insufficiency of an answer.
2. Note to Subdivision (a). This preserves the substance of
[former] Equity Rule 31 (Reply - When Required - When Cause at
Issue). Compare the English practice, English Rules Under the
Judicature Act (The Annual Practice, 1937) O. 23, r.r. 1, 2 (Reply
to counterclaim; amended, 1933, to be subject to the rules
applicable to defenses, O. 21). See O. 21, r.r. 1-14; O. 27, r. 13
(When pleadings deemed denied and put in issue). Under the codes
the pleadings are generally limited. A reply is sometimes required
to an affirmative defense in the answer. 1 Colo.Stat.Ann. (1935)
Sec. 66; Ore.Code Ann. (1930) Secs. 1-614, 1-616. In other
jurisdictions no reply is necessary to an affirmative defense in
the answer, but a reply may be ordered by the court. N.C.Code Ann.
(1935) Sec. 525; 1 S.D.Comp.Laws (1929) Sec. 2357. A reply to a
counterclaim is usually required. Ark.Civ.Code (Crawford, 1934)
Secs. 123-125; Wis.Stat. (1935) Secs. 263.20, 263.21. U.S.C., Title
28, [former] Sec. 45 (District courts; practice and procedure in
certain cases) is modified insofar as it may dispense with a reply
to a counterclaim.
For amendment of pleadings, see Rule 15 dealing with amended and
supplemental pleadings.
3. All statutes which use the words "petition", "bill of
complaint", "plea", "demurrer", and other such terminology are
modified in form by this rule.
NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT
This amendment [to subdivision (a)] eliminates any question as to
whether the compulsory reply, where a counterclaim is pleaded, is a
reply only to the counterclaim or is a general reply to the answer
containing the counterclaim. See Commentary, Scope of Reply Where
Defendant Has Pleaded Counterclaim (1939) 1 Fed.Rules Serv. 672;
Fort Chartres and Ivy Landing Drainage and Levee District No. Five
v. Thompson (E.D.Ill. 1945) 8 Fed.Rules Serv. 13.32, Case 1.
NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT
Certain redundant words are eliminated and the subdivision is
modified to reflect the amendment of Rule 14(a) which in certain
cases eliminates the requirement of obtaining leave to bring in a
third-party defendant.
NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT
One of the reasons sanctions against improper motion practice
have been employed infrequently is the lack of clarity of Rule 7.
That rule has stated only generally that the pleading requirements
relating to captions, signing, and other matters of form also apply
to motions and other papers. The addition of Rule 7(b)(3) makes
explicit the applicability of the signing requirement and the
sanctions of Rule 11, which have been amplified.
-End-
-CITE-
28 USC APPENDIX Rule 7.1 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
III. PLEADINGS AND MOTIONS
-HEAD-
Rule 7.1. Disclosure Statement
-STATUTE-
(a) Who Must File: Nongovernmental Corporate Party. A
nongovernmental corporate party to an action or proceeding in a
district court must file two copies of a statement that identifies
any parent corporation and any publicly held corporation that owns
10% or more of its stock or states that there is no such
corporation.
(b) Time for Filing; Supplemental Filing. A party must:
(1) file the Rule 7.1(a) statement with its first appearance,
pleading, petition, motion, response, or other request addressed
to the court, and
(2) promptly file a supplemental statement upon any change in
the information that the statement requires.
-SOURCE-
(As added Apr. 29, 2002, eff. Dec. 1, 2002.)
-MISC1-
COMMITTEE NOTES ON RULES - 2002 AMENDMENT
Rule 7.1 is drawn from Rule 26.1 of the Federal Rules of
Appellate Procedure, with changes to adapt to the circumstances of
district courts that dictate different provisions for the time of
filing, number of copies, and the like. The information required by
Rule 7.1(a) reflects the "financial interest" standard of Canon
3C(1)(c) of the Code of Conduct for United States Judges. This
information will support properly informed disqualification
decisions in situations that call for automatic disqualification
under Canon 3C(1)(c). It does not cover all of the circumstances
that may call for disqualification under the financial interest
standard, and does not deal at all with other circumstances that
may call for disqualification.
Although the disclosures required by Rule 7.1(a) may seem
limited, they are calculated to reach a majority of the
circumstances that are likely to call for disqualification on the
basis of financial information that a judge may not know or
recollect. Framing a rule that calls for more detailed disclosure
will be difficult. Unnecessary disclosure requirements place a
burden on the parties and on courts. Unnecessary disclosure of
volumes of information may create a risk that a judge will overlook
the one bit of information that might require disqualification, and
also may create a risk that unnecessary disqualifications will be
made rather than attempt to unravel a potentially difficult
question. It has not been feasible to dictate more detailed
disclosure requirements in Rule 7.1(a).
Rule 7.1 does not prohibit local rules that require disclosures
in addition to those required by Rule 7.1. Developing experience
with local disclosure practices and advances in electronic
technology may provide a foundation for adopting more detailed
disclosure requirements by future amendments of Rule 7.1.
Changes Made After Publication and Comments. The provisions that
would require disclosure of additional information that may be
required by the Judicial Conference have been deleted.
-End-
-CITE-
28 USC APPENDIX Rule 8 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
III. PLEADINGS AND MOTIONS
-HEAD-
Rule 8. General Rules of Pleading
-STATUTE-
(a) Claims for Relief. A pleading which sets forth a claim for
relief, whether an original claim, counterclaim, cross-claim, or
third-party claim, shall contain (1) a short and plain statement of
the grounds upon which the court's jurisdiction depends, unless the
court already has jurisdiction and the claim needs no new grounds
of jurisdiction to support it, (2) a short and plain statement of
the claim showing that the pleader is entitled to relief, and (3) a
demand for judgment for the relief the pleader seeks. Relief in the
alternative or of several different types may be demanded.
(b) Defenses; Form of Denials. A party shall state in short and
plain terms the party's defenses to each claim asserted and shall
admit or deny the averments upon which the adverse party relies. If
a party is without knowledge or information sufficient to form a
belief as to the truth of an averment, the party shall so state and
this has the effect of a denial. Denials shall fairly meet the
substance of the averments denied. When a pleader intends in good
faith to deny only a part or a qualification of an averment, the
pleader shall specify so much of it as is true and material and
shall deny only the remainder. Unless the pleader intends in good
faith to controvert all the averments of the preceding pleading,
the pleader may make denials as specific denials of designated
averments or paragraphs or may generally deny all the averments
except such designated averments or paragraphs as the pleader
expressly admits; but, when the pleader does so intend to
controvert all its averments, including averments of the grounds
upon which the court's jurisdiction depends, the pleader may do so
by general denial subject to the obligations set forth in Rule 11.
(c) Affirmative Defenses. In pleading to a preceding pleading, a
party shall set forth affirmatively accord and satisfaction,
arbitration and award, assumption of risk, contributory negligence,
discharge in bankruptcy, duress, estoppel, failure of
consideration, fraud, illegality, injury by fellow servant, laches,
license, payment, release, res judicata, statute of frauds, statute
of limitations, waiver, and any other matter constituting an
avoidance or affirmative defense. When a party has mistakenly
designated a defense as a counterclaim or a counterclaim as a
defense, the court on terms, if justice so requires, shall treat
the pleading as if there had been a proper designation.
(d) Effect of Failure To Deny. Averments in a pleading to which a
responsive pleading is required, other than those as to the amount
of damage, are admitted when not denied in the responsive pleading.
Averments in a pleading to which no responsive pleading is required
or permitted shall be taken as denied or avoided.
(e) Pleading To Be Concise and Direct; Consistency.
(1) Each averment of a pleading shall be simple, concise, and
direct. No technical forms of pleading or motions are required.
(2) A party may set forth two or more statements of a claim or
defense alternately or hypothetically, either in one count or
defense or in separate counts or defenses. When two or more
statements are made in the alternative and one of them if made
independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the
alternative statements. A party may also state as many separate
claims or defenses as the party has regardless of consistency and
whether based on legal, equitable, or maritime grounds. All
statements shall be made subject to the obligations set forth in
Rule 11.
(f) Construction of Pleadings. All pleadings shall be so
construed as to do substantial justice.
-SOURCE-
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
Note to Subdivision (a). See [former] Equity Rules 25 (Bill of
Complaint - Contents), and 30 (Answer - Contents - Counterclaim).
Compare 2 Ind.Stat.Ann. (Burns, 1933) Secs. 2-1004, 2-1015; 2 Ohio
Gen.Code Ann. (Page, 1926) Secs. 11305, 11314; Utah Rev.Stat.Ann.
(1933), Secs. 104-7-2, 104-9-1.
See Rule 19(c) for the requirement of a statement in a claim for
relief of the names of persons who ought to be parties and the
reason for their omission.
See Rule 23(b) for particular requirements as to the complaint in
a secondary action by shareholders.
Note to Subdivision (b). 1. This rule supersedes the methods of
pleading prescribed in U.S.C., Title 19, Sec. 508 (Persons making
seizures pleading general issue and providing special matter);
U.S.C., Title 35, [former] Secs. 40d (Providing under general
issue, upon notice, that a statement in application for an extended
patent is not true), 69 [now 282] (Pleading and proof in actions
for infringement) and similar statutes.
2. This rule is, in part, [former] Equity Rule 30 (Answer -
Contents - Counterclaim), with the matter on denials largely from
the Connecticut practice. See Conn.Practice Book (1934) Secs. 107,
108, and 122; Conn.Gen.Stat. (1930) Secs. 5508-5514. Compare the
English practice, English Rules Under the Judicature Act (The
Annual Practice, 1937) O. 19, r.r. 17-20.
Note to Subdivision (c). This follows substantially English Rules
Under the Judicature Act (The Annual Practice, 1937) O. 19, r. 15
and N.Y.C.P.A. (1937) Sec. 242, with "surprise" omitted in this
rule.
Note to Subdivision (d). The first sentence is similar to
[former] Equity Rule 30 (Answer - Contents - Counterclaim). For the
second sentence see [former] Equity Rule 31 (Reply - When Required
- When Cause at Issue). This is similar to English Rules Under the
Judicature Act (The Annual Practice, 1937) O. 19, r.r. 13, 18; and
to the practice in the States.
Note to Subdivision (e). This rule is an elaboration upon
[former] Equity Rule 30 (Answer - Contents - Counterclaim), plus a
statement of the actual practice under some codes. Compare also
[former] Equity Rule 18 (Pleadings - Technical Forms Abrogated).
See Clark, Code Pleading (1928), pp. 171-4, 432-5; Hankin,
Alternative and Hypothetical Pleading (1924), 33 Yale L.J. 365.
Note to Subdivision (f). A provision of like import is of
frequent occurrence in the codes. Ill.Rev.Stat. (1937) ch. 110,
Sec. 157(3); 2 Minn.Stat. (Mason, 1927) Sec. 9266; N.Y.C.P.A.
(1937) Sec. 275; 2 N.D.Comp.Laws Ann. (1913) Sec. 7458.
NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT
The change here is consistent with the broad purposes of
unification.
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendments are technical. No substantive change is intended.
-End-
-CITE-
28 USC APPENDIX Rule 9 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
III. PLEADINGS AND MOTIONS
-HEAD-
Rule 9. Pleading Special Matters
-STATUTE-
(a) Capacity. It is not necessary to aver the capacity of a party
to sue or be sued or the authority of a party to sue or be sued in
a representative capacity or the legal existence of an organized
association of persons that is made a party, except to the extent
required to show the jurisdiction of the court. When a party
desires to raise an issue as to the legal existence of any party or
the capacity of any party to sue or be sued or the authority of a
party to sue or be sued in a representative capacity, the party
desiring to raise the issue shall do so by specific negative
averment, which shall include such supporting particulars as are
peculiarly within the pleader's knowledge.
(b) Fraud, Mistake, Condition of the Mind. In all averments of
fraud or mistake, the circumstances constituting fraud or mistake
shall be stated with particularity. Malice, intent, knowledge, and
other condition of mind of a person may be averred generally.
(c) Conditions Precedent. In pleading the performance or
occurrence of conditions precedent, it is sufficient to aver
generally that all conditions precedent have been performed or have
occurred. A denial of performance or occurrence shall be made
specifically and with particularity.
(d) Official Document or Act. In pleading an official document or
official act it is sufficient to aver that the document was issued
or the act done in compliance with law.
(e) Judgment. In pleading a judgment or decision of a domestic or
foreign court, judicial or quasi-judicial tribunal, or of a board
or officer, it is sufficient to aver the judgment or decision
without setting forth matter showing jurisdiction to render it.
(f) Time and Place. For the purpose of testing the sufficiency of
a pleading, averments of time and place are material and shall be
considered like all other averments of material matter.
(g) Special Damage. When items of special damage are claimed,
they shall be specifically stated.
(h) Admiralty and Maritime Claims. A pleading or count setting
forth a claim for relief within the admiralty and maritime
jurisdiction that is also within the jurisdiction of the district
court on some other ground may contain a statement identifying the
claim as an admiralty or maritime claim for the purposes of Rules
14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty
and Maritime Claims. If the claim is cognizable only in admiralty,
it is an admiralty or maritime claim for those purposes whether so
identified or not. The amendment of a pleading to add or withdraw
an identifying statement is governed by the principles of Rule 15.
A case that includes an admiralty or maritime claim within this
subdivision is an admiralty case within 28 U.S.C. Sec. 1292(a)(3).
-SOURCE-
(As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff.
July 1, 1968; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
Note to Subdivision (a). Compare [former] Equity Rule 25 (Bill of
Complaint - Contents) requiring disability to be stated; Utah
Rev.Stat.Ann. (1933) Sec. 104-13-15, enumerating a number of
situations where a general averment of capacity is sufficient. For
provisions governing averment of incorporation, see 2 Minn.Stat.
(Mason, 1927) Sec. 9271; N.Y.R.C.P. (1937) Rule 93; 2 N.D.Comp.Laws
Ann. (1913) Sec. 7981 et seq.
Note to Subdivision (b). See English Rules Under the Judicature
Act (The Annual Practice, 1937) O. 19, r. 22.
Note to Subdivision (c). The codes generally have this or a
similar provision. See English Rules Under the Judicature Act (The
Annual Practice, 1937) O. 19, r. 14; 2 Minn.Stat. (Mason, 1927)
Sec. 9273; N.Y.R.C.P. (1937) Rule 92; 2 N.D.Comp.Laws Ann. (1913)
Sec. 7461; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 288.
Note to Subdivision (e). The rule expands the usual code
provisions on pleading a judgment by including judgments or
decisions of administrative tribunals and foreign courts. Compare
Ark.Civ.Code (Crawford, 1934) Sec. 141; 2 Minn.Stat. (Mason, 1927)
Sec. 9269; N.Y.R.C.P. (1937) Rule 95; 2 Wash.Rev.Stat.Ann.
(Remington, 1932) Sec. 287.
NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT
Certain distinctive features of the admiralty practice must be
preserved for what are now suits in admiralty. This raises the
question: After unification, when a single form of action is
established, how will the counterpart of the present suit in
admiralty be identifiable? In part the question is easily answered.
Some claims for relief can only be suits in admiralty, either
because the admiralty jurisdiction is exclusive or because no
nonmaritime ground of federal jurisdiction exists. Many claims,
however, are cognizable by the district courts whether asserted in
admiralty or in a civil action, assuming the existence of a
nonmaritime ground of jurisdiction. Thus at present the pleader has
power to determine procedural consequences by the way in which he
exercises the classic privilege given by the saving-to-suitors
clause (28 U.S.C. Sec. 1333) or by equivalent statutory provisions.
For example, a longshoreman's claim for personal injuries suffered
by reason of the unseaworthiness of a vessel may be asserted in a
suit in admiralty or, if diversity of citizenship exists, in a
civil action. One of the important procedural consequences is that
in the civil action either party may demand a jury trial, while in
the suit in admiralty there is no right to jury trial except as
provided by statute.
It is no part of the purpose of unification to inject a right to
jury trial into those admiralty cases in which that right is not
provided by statute. Similarly as will be more specifically noted
below, there is no disposition to change the present law as to
interlocutory appeals in admiralty, or as to the venue of suits in
admiralty; and, of course, there is no disposition to inject into
the civil practice as it now is the distinctively maritime remedies
(maritime attachment and garnishment, actions in rem, possessory,
petitory and partition actions and limitation of liability). The
unified rules must therefore provide some device for preserving the
present power of the pleader to determine whether these
historically maritime procedures shall be applicable to his claim
or not; the pleader must be afforded some means of designating his
claim as the counterpart of the present suit in admiralty, where
its character as such is not clear.
The problem is different from the similar one concerning the
identification of claims that were formerly suits in equity. While
that problem is not free from complexities, it is broadly true that
the modern counterpart of the suit in equity is distinguishable
from the former action at law by the character of the relief
sought. This mode of identification is possible in only a limited
category of admiralty cases. In large numbers of cases the relief
sought in admiralty is simple money damages, indistinguishable from
the remedy afforded by the common law. This is true, for example,
in the case of the longshoreman's action for personal injuries
stated above. After unification has abolished the distinction
between civil actions and suits in admiralty, the complaint in such
an action would be almost completely ambiguous as to the pleader's
intentions regarding the procedure invoked. The allegation of
diversity of citizenship might be regarded as a clue indicating an
intention to proceed as at present under the saving-to-suitors
clause; but this, too, would be ambiguous if there were also
reference to the admiralty jurisdiction, and the pleader ought not
be required to forego mention of all available jurisdictional
grounds.
Other methods of solving the problem were carefully explored, but
the Advisory Committee concluded that the preferable solution is to
allow the pleader who now has power to determine procedural
consequences by filing a suit in admiralty to exercise that power
under unification, for the limited instances in which procedural
differences will remain, by a simple statement in his pleading to
the effect that the claim is an admiralty or maritime claim.
The choice made by the pleader in identifying or in failing to
identify his claim as an admiralty or maritime claim is not an
irrevocable election. The rule provides that the amendment of a
pleading to add or withdraw an identifying statement is subject to
the principles of Rule 15.
NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT
The amendment eliminates the reference to Rule 73 which is to be
abrogated and transfers to Rule 9(h) the substance of Subsection
(h) of Rule 73 which preserved the right to an interlocutory appeal
in admiralty cases which is provided by 28 U.S.C. Sec. 1292(a)(3).
NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT
The reference to Rule 26(a) is deleted, in light of the transfer
of that subdivision to Rule 30(a) and the elimination of the de
bene esse procedure therefrom. See the Advisory Committee's note to
Rule 30(a).
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendment is technical. No substantive change is intended.
NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT
Section 1292(a)(3) of the Judicial Code provides for appeal from
"[i]nterlocutory decrees of * * * district courts * * * determining
the rights and liabilities of the parties to admiralty cases in
which appeals from final decrees are allowed."
Rule 9(h) was added in 1966 with the unification of civil and
admiralty procedure. Civil Rule 73(h) was amended at the same time
to provide that the Sec. 1292(a)(3) reference "to admiralty cases
shall be construed to mean admiralty and maritime claims within the
meaning of Rule 9(h)." This provision was transferred to Rule 9(h)
when the Appellate Rules were adopted.
A single case can include both admiralty or maritime claims and
nonadmiralty claims or parties. This combination reveals an
ambiguity in the statement in present Rule 9(h) that an admiralty
"claim" is an admiralty "case." An order "determining the rights
and liabilities of the parties" within the meaning of Sec.
1292(a)(3) may resolve only a nonadmiralty claim, or may
simultaneously resolve interdependent admiralty and nonadmiralty
claims. Can appeal be taken as to the nonadmiralty matter, because
it is part of a case that includes an admiralty claim, or is appeal
limited to the admiralty claim?
The courts of appeals have not achieved full uniformity in
applying the Sec. 1292(a)(3) requirement that an order "determin[e]
the rights and liabilities of the parties." It is common to assert
that the statute should be construed narrowly, under the general
policy that exceptions to the final judgment rule should be
construed narrowly. This policy would suggest that the ambiguity
should be resolved by limiting the interlocutory appeal right to
orders that determine the rights and liabilities of the parties to
an admiralty claim.
A broader view is chosen by this amendment for two reasons. The
statute applies to admiralty "cases," and may itself provide for
appeal from an order that disposes of a nonadmiralty claim that is
joined in a single case with an admiralty claim. Although a rule of
court may help to clarify and implement a statutory grant of
jurisdiction, the line is not always clear between permissible
implementation and impermissible withdrawal of jurisdiction. In
addition, so long as an order truly disposes of the rights and
liabilities of the parties within the meaning of Sec. 1292(a)(3),
it may prove important to permit appeal as to the nonadmiralty
claim. Disposition of the nonadmiralty claim, for example, may make
it unnecessary to consider the admiralty claim and have the same
effect on the case and parties as disposition of the admiralty
claim. Or the admiralty and nonadmiralty claims may be
interdependent. An illustration is provided by Roco Carriers, Ltd.
v. M/V Nurnberg Express, 899 F.2d 1292 (2d Cir. 1990). Claims for
losses of ocean shipments were made against two defendants, one
subject to admiralty jurisdiction and the other not. Summary
judgment was granted in favor of the admiralty defendant and
against the nonadmiralty defendant. The nonadmiralty defendant's
appeal was accepted, with the explanation that the determination of
its liability was "integrally linked with the determination of
non-liability" of the admiralty defendant, and that "section
1292(a)(3) is not limited to admiralty claims; instead, it refers
to admiralty cases." 899 F.2d at 1297. The advantages of permitting
appeal by the nonadmiralty defendant would be particularly clear if
the plaintiff had appealed the summary judgment in favor of the
admiralty defendant.
It must be emphasized that this amendment does not rest on any
particular assumptions as to the meaning of the Sec. 1292(a)(3)
provision that limits interlocutory appeal to orders that determine
the rights and liabilities of the parties. It simply reflects the
conclusion that so long as the case involves an admiralty claim and
an order otherwise meets statutory requirements, the opportunity to
appeal should not turn on the circumstance that the order does - or
does not - dispose of an admiralty claim. No attempt is made to
invoke the authority conferred by 28 U.S.C. Sec. 1292(e) to provide
by rule for appeal of an interlocutory decision that is not
otherwise provided for by other subsections of Sec. 1292.
GAP Report on Rule 9(h). No changes have been made in the
published proposal.
-End-
-CITE-
28 USC APPENDIX Rule 10 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
III. PLEADINGS AND MOTIONS
-HEAD-
Rule 10. Form of Pleadings
-STATUTE-
(a) Caption; Names of Parties. Every pleading shall contain a
caption setting forth the name of the court, the title of the
action, the file number, and a designation as in Rule 7(a). In the
complaint the title of the action shall include the names of all
the parties, but in other pleadings it is sufficient to state the
name of the first party on each side with an appropriate indication
of other parties.
(b) Paragraphs; Separate Statements. All averments of claim or
defense shall be made in numbered paragraphs, the contents of each
of which shall be limited as far as practicable to a statement of a
single set of circumstances; and a paragraph may be referred to by
number in all succeeding pleadings. Each claim founded upon a
separate transaction or occurrence and each defense other than
denials shall be stated in a separate count or defense whenever a
separation facilitates the clear presentation of the matters set
forth.
(c) Adoption by Reference; Exhibits. Statements in a pleading may
be adopted by reference in a different part of the same pleading or
in another pleading or in any motion. A copy of any written
instrument which is an exhibit to a pleading is a part thereof for
all purposes.
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
The first sentence is derived in part from the opening statement
of [former] Equity Rule 25 (Bill of Complaint - Contents). The
remainder of the rule is an expansion in conformity with usual
state provisions. For numbered paragraphs and separate statements,
see Conn.Gen.Stat. (1930) Sec. 5513; Ill.Rev.Stat. (1937) ch. 110,
Sec. 157 (2); N.Y.R.C.P. (1937) Rule 90. For incorporation by
reference, see N.Y.R.C.P. (1937) Rule 90. For written instruments
as exhibits, see Ill.Rev.Stat. (1937) ch. 110, Sec. 160.
-End-
-CITE-
28 USC APPENDIX Rule 11 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
III. PLEADINGS AND MOTIONS
-HEAD-
Rule 11. Signing of Pleadings, Motions, and Other Papers;
Representations to Court; Sanctions
-STATUTE-
(a) Signature. Every pleading, written motion, and other paper
shall be signed by at least one attorney of record in the
attorney's individual name, or, if the party is not represented by
an attorney, shall be signed by the party. Each paper shall state
the signer's address and telephone number, if any. Except when
otherwise specifically provided by rule or statute, pleadings need
not be verified or accompanied by affidavit. An unsigned paper
shall be stricken unless omission of the signature is corrected
promptly after being called to the attention of the attorney or
party.
(b) Representations to Court. By presenting to the court (whether
by signing, filing, submitting, or later advocating) a pleading,
written motion, or other paper, an attorney or unrepresented party
is certifying that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under
the circumstances, -
(1) it is not being presented for any improper purpose, such as
to harass or to cause unnecessary delay or needless increase in
the cost of litigation;
(2) the claims, defenses, and other legal contentions therein
are warranted by existing law or by a nonfrivolous argument for
the extension, modification, or reversal of existing law or the
establishment of new law;
(3) the allegations and other factual contentions have
evidentiary support or, if specifically so identified, are likely
to have evidentiary support after a reasonable opportunity for
further investigation or discovery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based
on a lack of information or belief.
(c) Sanctions. If, after notice and a reasonable opportunity to
respond, the court determines that subdivision (b) has been
violated, the court may, subject to the conditions stated below,
impose an appropriate sanction upon the attorneys, law firms, or
parties that have violated subdivision (b) or are responsible for
the violation.
(1) How Initiated.
(A) By Motion. A motion for sanctions under this rule shall
be made separately from other motions or requests and shall
describe the specific conduct alleged to violate subdivision
(b). It shall be served as provided in Rule 5, but shall not be
filed with or presented to the court unless, within 21 days
after service of the motion (or such other period as the court
may prescribe), the challenged paper, claim, defense,
contention, allegation, or denial is not withdrawn or
appropriately corrected. If warranted, the court may award to
the party prevailing on the motion the reasonable expenses and
attorney's fees incurred in presenting or opposing the motion.
Absent exceptional circumstances, a law firm shall be held
jointly responsible for violations committed by its partners,
associates, and employees.
(B) On Court's Initiative. On its own initiative, the court
may enter an order describing the specific conduct that appears
to violate subdivision (b) and directing an attorney, law firm,
or party to show cause why it has not violated subdivision (b)
with respect thereto.
(2) Nature of Sanction; Limitations. A sanction imposed for
violation of this rule shall be limited to what is sufficient to
deter repetition of such conduct or comparable conduct by others
similarly situated. Subject to the limitations in subparagraphs
(A) and (B), the sanction may consist of, or include, directives
of a nonmonetary nature, an order to pay a penalty into court,
or, if imposed on motion and warranted for effective deterrence,
an order directing payment to the movant of some or all of the
reasonable attorneys' fees and other expenses incurred as a
direct result of the violation.
(A) Monetary sanctions may not be awarded against a
represented party for a violation of subdivision (b)(2).
(B) Monetary sanctions may not be awarded on the court's
initiative unless the court issues its order to show cause
before a voluntary dismissal or settlement of the claims made
by or against the party which is, or whose attorneys are, to be
sanctioned.
(3) Order. When imposing sanctions, the court shall describe
the conduct determined to constitute a violation of this rule and
explain the basis for the sanction imposed.
(d) Inapplicability to Discovery. Subdivisions (a) through (c) of
this rule do not apply to disclosures and discovery requests,
responses, objections, and motions that are subject to the
provisions of Rules 26 through 37.
-SOURCE-
(As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
This is substantially the content of [former] Equity Rules 24
(Signature of Counsel) and 21 (Scandal and Impertinence)
consolidated and unified. Compare [former] Equity Rule 36 (Officers
Before Whom Pleadings Verified). Compare to similar purposes,
English Rules Under the Judicature Act (The Annual Practice, 1937)
O. 19, r. 4, and Great Australian Gold Mining Co. v. Martin, L. R.,
5 Ch.Div. 1, 10 (1877). Subscription of pleadings is required in
many codes. 2 Minn.Stat. (Mason, 1927) Sec. 9265; N.Y.R.C.P. (1937)
Rule 91; 2 N.D.Comp.Laws Ann. (1913) Sec. 7455.
This rule expressly continues any statute which requires a
pleading to be verified or accompanied by an affidavit, such as:
U.S.C., Title 28:
Sec. 381 [former] (Preliminary injunctions and temporary
restraining orders)
Sec. 762 [now 1402] (Suit against the United States).
U.S.C., Title 28, Sec. 829 [now 1927] (Costs; attorney liable
for, when) is unaffected by this rule.
For complaints which must be verified under these rules, see
Rules 23(b) (Secondary Action by Shareholders) and 65
(Injunctions).
For abolition of the rule in equity that the averments of an
answer under oath must be overcome by the testimony of two
witnesses or of one witness sustained by corroborating
circumstances, see Pa.Stat.Ann. (Purdon, 1931) see 12 P.S.Pa., Sec.
1222; for the rule in equity itself, see Greenfield v. Blumenthal,
69 F.2d 294 (C.C.A. 3d, 1934).
NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT
Since its original promulgation, Rule 11 has provided for the
striking of pleadings and the imposition of disciplinary sanctions
to check abuses in the signing of pleadings. Its provisions have
always applied to motions and other papers by virtue of
incorporation by reference in Rule 7(b)(2). The amendment and the
addition of Rule 7(b)(3) expressly confirms this applicability.
Experience shows that in practice Rule 11 has not been effective
in deterring abuses. See 6 Wright & Miller, Federal Practice and
Procedure: Civil Sec. 1334 (1971). There has been considerable
confusion as to (1) the circumstances that should trigger striking
a pleading or motion or taking disciplinary action, (2) the
standard of conduct expected of attorneys who sign pleadings and
motions, and (3) the range of available and appropriate sanctions.
See Rodes, Ripple & Mooney, Sanctions Imposable for Violations of
the Federal Rules of Civil Procedure 64-65, Federal Judicial Center
(1981). The new language is intended to reduce the reluctance of
courts to impose sanctions, see Moore, Federal Practice ¶
7.05, at 1547, by emphasizing the responsibilities of the attorney
and reenforcing those obligations by the imposition of sanctions.
The amended rule attempts to deal with the problem by building
upon and expanding the equitable doctrine permitting the court to
award expenses, including attorney's fees, to a litigant whose
opponent acts in bad faith in instituting or conducting litigation.
See, e.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, (1980);
Hall v. Cole, 412 U.S. 1, 5 (1973). Greater attention by the
district courts to pleading and motion abuses and the imposition of
sanctions when appropriate, should discourage dilatory or abusive
tactics and help to streamline the litigation process by lessening
frivolous claims or defenses.
The expanded nature of the lawyer's certification in the fifth
sentence of amended Rule 11 recognizes that the litigation process
may be abused for purposes other than delay. See, e.g., Browning
Debenture Holders' Committee v. DASA Corp., 560 F.2d 1078 (2d Cir.
1977).
The words "good ground to support" the pleading in the original
rule were interpreted to have both factual and legal elements. See,
e.g., Heart Disease Research Foundation v. General Motors Corp., 15
Fed.R.Serv. 2d 1517, 1519 (S.D.N.Y. 1972). They have been replaced
by a standard of conduct that is more focused.
The new language stresses the need for some prefiling inquiry
into both the facts and the law to satisfy the affirmative duty
imposed by the rule. The standard is one of reasonableness under
the circumstances. See Kinee v. Abraham Lincoln Fed. Sav. & Loan
Ass'n, 365 F.Supp. 975 (E.D.Pa. 1973). This standard is more
stringent than the original good-faith formula and thus it is
expected that a greater range of circumstances will trigger its
violation. See Nemeroff v. Abelson, 620 F.2d 339 (2d Cir. 1980).
The rule is not intended to chill an attorney's enthusiasm or
creativity in pursuing factual or legal theories. The court is
expected to avoid using the wisdom of hindsight and should test the
signer's conduct by inquiring what was reasonable to believe at the
time the pleading, motion, or other paper was submitted. Thus, what
constitutes a reasonable inquiry may depend on such factors as how
much time for investigation was available to the signer; whether he
had to rely on a client for information as to the facts underlying
the pleading, motion, or other paper; whether the pleading, motion,
or other paper was based on a plausible view of the law; or whether
he depended on forwarding counsel or another member of the bar.
The rule does not require a party or an attorney to disclose
privileged communications or work product in order to show that the
signing of the pleading, motion, or other paper is substantially
justified. The provisions of Rule 26(c), including appropriate
orders after in camera inspection by the court, remain available to
protect a party claiming privilege or work product protection.
Amended Rule 11 continues to apply to anyone who signs a
pleading, motion, or other paper. Although the standard is the same
for unrepresented parties, who are obliged themselves to sign the
pleadings, the court has sufficient discretion to take account of
the special circumstances that often arise in pro se situations.
See Haines v. Kerner 404 U.S. 519 (1972).
The provision in the original rule for striking pleadings and
motions as sham and false has been deleted. The passage has rarely
been utilized, and decisions thereunder have tended to confuse the
issue of attorney honesty with the merits of the action. See
generally Risinger, Honesty in Pleading and its Enforcement: Some
"Striking" Problems with Fed. R. Civ. P. 11, 61 Minn.L.Rev. 1
(1976). Motions under this provision generally present issues
better dealt with under Rules 8, 12, or 56. See Murchison v. Kirby,
27 F.R.D. 14 (S.D.N.Y. 1961); 5 Wright & Miller, Federal Practice
and Procedure: Civil Sec. 1334 (1969).
The former reference to the inclusion of scandalous or indecent
matter, which is itself strong indication that an improper purpose
underlies the pleading, motion, or other paper, also has been
deleted as unnecessary. Such matter may be stricken under Rule
12(f) as well as dealt with under the more general language of
amended Rule 11.
The text of the amended rule seeks to dispel apprehensions that
efforts to obtain enforcement will be fruitless by insuring that
the rule will be applied when properly invoked. The word
"sanctions" in the caption, for example, stresses a deterrent
orientation in dealing with improper pleadings, motions or other
papers. This corresponds to the approach in imposing sanctions for
discovery abuses. See National Hockey League v. Metropolitan Hockey
Club, 427 U.S. 639 (1976) (per curiam). And the words "shall
impose" in the last sentence focus the court's attention on the
need to impose sanctions for pleading and motion abuses. The court,
however, retains the necessary flexibility to deal appropriately
with violations of the rule. It has discretion to tailor sanctions
to the particular facts of the case, with which it should be well
acquainted.
The reference in the former text to wilfullness as a prerequisite
to disciplinary action has been deleted. However, in considering
the nature and severity of the sanctions to be imposed, the court
should take account of the state of the attorney's or party's
actual or presumed knowledge when the pleading or other paper was
signed. Thus, for example, when a party is not represented by
counsel, the absence of legal advice is an appropriate factor to be
considered.
Courts currently appear to believe they may impose sanctions on
their own motion. See North American Trading Corp. v. Zale Corp.,
73 F.R.D. 293 (S.D.N.Y. 1979). Authority to do so has been made
explicit in order to overcome the traditional reluctance of courts
to intervene unless requested by one of the parties. The detection
and punishment of a violation of the signing requirement,
encouraged by the amended rule, is part of the court's
responsibility for securing the system's effective operation.
If the duty imposed by the rule is violated, the court should
have the discretion to impose sanctions on either the attorney, the
party the signing attorney represents, or both, or on an
unrepresented party who signed the pleading, and the new rule so
provides. Although Rule 11 has been silent on the point, courts
have claimed the power to impose sanctions on an attorney
personally, either by imposing costs or employing the contempt
technique. See 5 Wright & Miller, Federal Practice and Procedure:
Civil Sec. 1334 (1969); 2A Moore, Federal Practice ¶ 11.02, at
2104 n.8. This power has been used infrequently. The amended rule
should eliminate any doubt as to the propriety of assessing
sanctions against the attorney.
Even though it is the attorney whose signature violates the rule,
it may be appropriate under the circumstances of the case to impose
a sanction on the client. See Browning Debenture Holders' Committee
v. DASA Corp., supra. This modification brings Rule 11 in line with
practice under Rule 37, which allows sanctions for abuses during
discovery to be imposed upon the party, the attorney, or both.
A party seeking sanctions should give notice to the court and the
offending party promptly upon discovering a basis for doing so. The
time when sanctions are to be imposed rests in the discretion of
the trial judge. However, it is anticipated that in the case of
pleadings the sanctions issue under Rule 11 normally will be
determined at the end of the litigation, and in the case of motions
at the time when the motion is decided or shortly thereafter. The
procedure obviously must comport with due process requirements. The
particular format to be followed should depend on the circumstances
of the situation and the severity of the sanction under
consideration. In many situations the judge's participation in the
proceedings provides him with full knowledge of the relevant facts
and little further inquiry will be necessary.
To assure that the efficiencies achieved through more effective
operation of the pleading regimen will not be offset by the cost of
satellite litigation over the imposition of sanctions, the court
must to the extent possible limit the scope of sanction proceedings
to the record. Thus, discovery should be conducted only by leave of
the court, and then only in extraordinary circumstances.
Although the encompassing reference to "other papers" in new Rule
11 literally includes discovery papers, the certification
requirement in that context is governed by proposed new Rule 26(g).
Discovery motions, however, fall within the ambit of Rule 11.
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendments are technical. No substantive change is intended.
NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT
Purpose of revision. This revision is intended to remedy problems
that have arisen in the interpretation and application of the 1983
revision of the rule. For empirical examination of experience under
the 1983 rule, see, e.g., New York State Bar Committee on Federal
Courts, Sanctions and Attorneys' Fees (1987); T. Willging, The Rule
11 Sanctioning Process (1989); American Judicature Society, Report
of the Third Circuit Task Force on Federal Rule of Civil Procedure
11 (S. Burbank ed., 1989); E. Wiggins, T. Willging, and D.
Stienstra, Report on Rule 11 (Federal Judicial Center 1991). For
book-length analyses of the case law, see G. Joseph, Sanctions: The
Federal Law of Litigation Abuse (1989); J. Solovy, The Federal Law
of Sanctions (1991); G. Vairo, Rule 11 Sanctions: Case Law
Perspectives and Preventive Measures (1991).
The rule retains the principle that attorneys and pro se
litigants have an obligation to the court to refrain from conduct
that frustrates the aims of Rule 1. The revision broadens the scope
of this obligation, but places greater constraints on the
imposition of sanctions and should reduce the number of motions for
sanctions presented to the court. New subdivision (d) removes from
the ambit of this rule all discovery requests, responses,
objections, and motions subject to the provisions of Rule 26
through 37.
Subdivision (a). Retained in this subdivision are the provisions
requiring signatures on pleadings, written motions, and other
papers. Unsigned papers are to be received by the Clerk, but then
are to be stricken if the omission of the signature is not
corrected promptly after being called to the attention of the
attorney or pro se litigant. Correction can be made by signing the
paper on file or by submitting a duplicate that contains the
signature. A court may require by local rule that papers contain
additional identifying information regarding the parties or
attorneys, such as telephone numbers to facilitate facsimile
transmissions, though, as for omission of a signature, the paper
should not be rejected for failure to provide such information.
The sentence in the former rule relating to the effect of answers
under oath is no longer needed and has been eliminated. The
provision in the former rule that signing a paper constitutes a
certificate that it has been read by the signer also has been
eliminated as unnecessary. The obligations imposed under
subdivision (b) obviously require that a pleading, written motion,
or other paper be read before it is filed or submitted to the
court.
Subdivisions (b) and (c). These subdivisions restate the
provisions requiring attorneys and pro se litigants to conduct a
reasonable inquiry into the law and facts before signing pleadings,
written motions, and other documents, and prescribing sanctions for
violation of these obligations. The revision in part expands the
responsibilities of litigants to the court, while providing greater
constraints and flexibility in dealing with infractions of the
rule. The rule continues to require litigants to "stop-and-think"
before initially making legal or factual contentions. It also,
however, emphasizes the duty of candor by subjecting litigants to
potential sanctions for insisting upon a position after it is no
longer tenable and by generally providing protection against
sanctions if they withdraw or correct contentions after a potential
violation is called to their attention.
The rule applies only to assertions contained in papers filed
with or submitted to the court. It does not cover matters arising
for the first time during oral presentations to the court, when
counsel may make statements that would not have been made if there
had been more time for study and reflection. However, a litigant's
obligations with respect to the contents of these papers are not
measured solely as of the time they are filed with or submitted to
the court, but include reaffirming to the court and advocating
positions contained in those pleadings and motions after learning
that they cease to have any merit. For example, an attorney who
during a pretrial conference insists on a claim or defense should
be viewed as "presenting to the court" that contention and would be
subject to the obligations of subdivision (b) measured as of that
time. Similarly, if after a notice of removal is filed, a party
urges in federal court the allegations of a pleading filed in state
court (whether as claims, defenses, or in disputes regarding
removal or remand), it would be viewed as "presenting" - and hence
certifying to the district court under Rule 11 - those allegations.
The certification with respect to allegations and other factual
contentions is revised in recognition that sometimes a litigant may
have good reason to believe that a fact is true or false but may
need discovery, formal or informal, from opposing parties or third
persons to gather and confirm the evidentiary basis for the
allegation. Tolerance of factual contentions in initial pleadings
by plaintiffs or defendants when specifically identified as made on
information and belief does not relieve litigants from the
obligation to conduct an appropriate investigation into the facts
that is reasonable under the circumstances; it is not a license to
join parties, make claims, or present defenses without any factual
basis or justification. Moreover, if evidentiary support is not
obtained after a reasonable opportunity for further investigation
or discovery, the party has a duty under the rule not to persist
with that contention. Subdivision (b) does not require a formal
amendment to pleadings for which evidentiary support is not
obtained, but rather calls upon a litigant not thereafter to
advocate such claims or defenses.
The certification is that there is (or likely will be)
"evidentiary support" for the allegation, not that the party will
prevail with respect to its contention regarding the fact. That
summary judgment is rendered against a party does not necessarily
mean, for purposes of this certification, that it had no
evidentiary support for its position. On the other hand, if a party
has evidence with respect to a contention that would suffice to
defeat a motion for summary judgment based thereon, it would have
sufficient "evidentiary support" for purposes of Rule 11.
Denials of factual contentions involve somewhat different
considerations. Often, of course, a denial is premised upon the
existence of evidence contradicting the alleged fact. At other
times a denial is permissible because, after an appropriate
investigation, a party has no information concerning the matter or,
indeed, has a reasonable basis for doubting the credibility of the
only evidence relevant to the matter. A party should not deny an
allegation it knows to be true; but it is not required, simply
because it lacks contradictory evidence, to admit an allegation
that it believes is not true.
The changes in subdivisions (b)(3) and (b)(4) will serve to
equalize the burden of the rule upon plaintiffs and defendants, who
under Rule 8(b) are in effect allowed to deny allegations by
stating that from their initial investigation they lack sufficient
information to form a belief as to the truth of the allegation. If,
after further investigation or discovery, a denial is no longer
warranted, the defendant should not continue to insist on that
denial. While sometimes helpful, formal amendment of the pleadings
to withdraw an allegation or denial is not required by subdivision
(b).
Arguments for extensions, modifications, or reversals of existing
law or for creation of new law do not violate subdivision (b)(2)
provided they are "nonfrivolous." This establishes an objective
standard, intended to eliminate any "empty-head pure-heart"
justification for patently frivolous arguments. However, the extent
to which a litigant has researched the issues and found some
support for its theories even in minority opinions, in law review
articles, or through consultation with other attorneys should
certainly be taken into account in determining whether paragraph
(2) has been violated. Although arguments for a change of law are
not required to be specifically so identified, a contention that is
so identified should be viewed with greater tolerance under the
rule.
The court has available a variety of possible sanctions to impose
for violations, such as striking the offending paper; issuing an
admonition, reprimand, or censure; requiring participation in
seminars or other educational programs; ordering a fine payable to
the court; referring the matter to disciplinary authorities (or, in
the case of government attorneys, to the Attorney General,
Inspector General, or agency head), etc. See Manual for Complex
Litigation, Second, Sec. 42.3. The rule does not attempt to
enumerate the factors a court should consider in deciding whether
to impose a sanction or what sanctions would be appropriate in the
circumstances; but, for emphasis, it does specifically note that a
sanction may be nonmonetary as well as monetary. Whether the
improper conduct was willful, or negligent; whether it was part of
a pattern of activity, or an isolated event; whether it infected
the entire pleading, or only one particular count or defense;
whether the person has engaged in similar conduct in other
litigation; whether it was intended to injure; what effect it had
on the litigation process in time or expense; whether the
responsible person is trained in the law; what amount, given the
financial resources of the responsible person, is needed to deter
that person from repetition in the same case; what amount is needed
to deter similar activity by other litigants: all of these may in a
particular case be proper considerations. The court has significant
discretion in determining what sanctions, if any, should be imposed
for a violation, subject to the principle that the sanctions should
not be more severe than reasonably necessary to deter repetition of
the conduct by the offending person or comparable conduct by
similarly situated persons.
Since the purpose of Rule 11 sanctions is to deter rather than to
compensate, the rule provides that, if a monetary sanction is
imposed, it should ordinarily be paid into court as a penalty.
However, under unusual circumstances, particularly for
[subdivision] (b)(1) violations, deterrence may be ineffective
unless the sanction not only requires the person violating the rule
to make a monetary payment, but also directs that some or all of
this payment be made to those injured by the violation.
Accordingly, the rule authorizes the court, if requested in a
motion and if so warranted, to award attorney's fees to another
party. Any such award to another party, however, should not exceed
the expenses and attorneys' fees for the services directly and
unavoidably caused by the violation of the certification
requirement. If, for example, a wholly unsupportable count were
included in a multi-count complaint or counterclaim for the purpose
of needlessly increasing the cost of litigation to an impecunious
adversary, any award of expenses should be limited to those
directly caused by inclusion of the improper count, and not those
resulting from the filing of the complaint or answer itself. The
award should not provide compensation for services that could have
been avoided by an earlier disclosure of evidence or an earlier
challenge to the groundless claims or defenses. Moreover, partial
reimbursement of fees may constitute a sufficient deterrent with
respect to violations by persons having modest financial resources.
In cases brought under statutes providing for fees to be awarded to
prevailing parties, the court should not employ cost-shifting under
this rule in a manner that would be inconsistent with the standards
that govern the statutory award of fees, such as stated in
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).
The sanction should be imposed on the persons - whether
attorneys, law firms, or parties - who have violated the rule or
who may be determined to be responsible for the violation. The
person signing, filing, submitting, or advocating a document has a
nondelegable responsibility to the court, and in most situations is
the person to be sanctioned for a violation. Absent exceptional
circumstances, a law firm is to be held also responsible when, as a
result of a motion under subdivision (c)(1)(A), one of its
partners, associates, or employees is determined to have violated
the rule. Since such a motion may be filed only if the offending
paper is not withdrawn or corrected within 21 days after service of
the motion, it is appropriate that the law firm ordinarily be
viewed as jointly responsible under established principles of
agency. This provision is designed to remove the restrictions of
the former rule. Cf. Pavelic & LeFlore v. Marvel Entertainment
Group, 493 U.S. 120 (1989) (1983 version of Rule 11 does not permit
sanctions against law firm of attorney signing groundless
complaint).
The revision permits the court to consider whether other
attorneys in the firm, co-counsel, other law firms, or the party
itself should be held accountable for their part in causing a
violation. When appropriate, the court can make an additional
inquiry in order to determine whether the sanction should be
imposed on such persons, firms, or parties either in addition to
or, in unusual circumstances, instead of the person actually making
the presentation to the court. For example, such an inquiry may be
appropriate in cases involving governmental agencies or other
institutional parties that frequently impose substantial
restrictions on the discretion of individual attorneys employed by
it.
Sanctions that involve monetary awards (such as a fine or an
award of attorney's fees) may not be imposed on a represented party
for causing a violation of subdivision (b)(2), involving frivolous
contentions of law. Monetary responsibility for such violations is
more properly placed solely on the party's attorneys. With this
limitation, the rule should not be subject to attack under the
Rules Enabling Act. See Willy v. Coastal Corp., __ U.S. __ (1992);
Business Guides, Inc. v. Chromatic Communications Enter. Inc., __
U.S. __ (1991). This restriction does not limit the court's power
to impose sanctions or remedial orders that may have collateral
financial consequences upon a party, such as dismissal of a claim,
preclusion of a defense, or preparation of amended pleadings.
Explicit provision is made for litigants to be provided notice of
the alleged violation and an opportunity to respond before
sanctions are imposed. Whether the matter should be decided solely
on the basis of written submissions or should be scheduled for oral
argument (or, indeed, for evidentiary presentation) will depend on
the circumstances. If the court imposes a sanction, it must, unless
waived, indicate its reasons in a written order or on the record;
the court should not ordinarily have to explain its denial of a
motion for sanctions. Whether a violation has occurred and what
sanctions, if any, to impose for a violation are matters committed
to the discretion of the trial court; accordingly, as under current
law, the standard for appellate review of these decisions will be
for abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496
U.S. 384 (1990) (noting, however, that an abuse would be
established if the court based its ruling on an erroneous view of
the law or on a clearly erroneous assessment of the evidence).
The revision leaves for resolution on a case-by-case basis,
considering the particular circumstances involved, the question as
to when a motion for violation of Rule 11 should be served and
when, if filed, it should be decided. Ordinarily the motion should
be served promptly after the inappropriate paper is filed, and, if
delayed too long, may be viewed as untimely. In other
circumstances, it should not be served until the other party has
had a reasonable opportunity for discovery. Given the "safe harbor"
provisions discussed below, a party cannot delay serving its Rule
11 motion until conclusion of the case (or judicial rejection of
the offending contention).
Rule 11 motions should not be made or threatened for minor,
inconsequential violations of the standards prescribed by
subdivision (b). They should not be employed as a discovery device
or to test the legal sufficiency or efficacy of allegations in the
pleadings; other motions are available for those purposes. Nor
should Rule 11 motions be prepared to emphasize the merits of a
party's position, to exact an unjust settlement, to intimidate an
adversary into withdrawing contentions that are fairly debatable,
to increase the costs of litigation, to create a conflict of
interest between attorney and client, or to seek disclosure of
matters otherwise protected by the attorney-client privilege or the
work-product doctrine. As under the prior rule, the court may defer
its ruling (or its decision as to the identity of the persons to be
sanctioned) until final resolution of the case in order to avoid
immediate conflicts of interest and to reduce the disruption
created if a disclosure of attorney-client communications is needed
to determine whether a violation occurred or to identify the person
responsible for the violation.
The rule provides that requests for sanctions must be made as a
separate motion, i.e., not simply included as an additional prayer
for relief contained in another motion. The motion for sanctions is
not, however, to be filed until at least 21 days (or such other
period as the court may set) after being served. If, during this
period, the alleged violation is corrected, as by withdrawing
(whether formally or informally) some allegation or contention, the
motion should not be filed with the court. These provisions are
intended to provide a type of "safe harbor" against motions under
Rule 11 in that a party will not be subject to sanctions on the
basis of another party's motion unless, after receiving the motion,
it refuses to withdraw that position or to acknowledge candidly
that it does not currently have evidence to support a specified
allegation. Under the former rule, parties were sometimes reluctant
to abandon a questionable contention lest that be viewed as
evidence of a violation of Rule 11; under the revision, the timely
withdrawal of a contention will protect a party against a motion
for sanctions.
To stress the seriousness of a motion for sanctions and to define
precisely the conduct claimed to violate the rule, the revision
provides that the "safe harbor" period begins to run only upon
service of the motion. In most cases, however, counsel should be
expected to give informal notice to the other party, whether in
person or by a telephone call or letter, of a potential violation
before proceeding to prepare and serve a Rule 11 motion.
As under former Rule 11, the filing of a motion for sanctions is
itself subject to the requirements of the rule and can lead to
sanctions. However, service of a cross motion under Rule 11 should
rarely be needed since under the revision the court may award to
the person who prevails on a motion under Rule 11 - whether the
movant or the target of the motion - reasonable expenses, including
attorney's fees, incurred in presenting or opposing the motion.
The power of the court to act on its own initiative is retained,
but with the condition that this be done through a show cause
order. This procedure provides the person with notice and an
opportunity to respond. The revision provides that a monetary
sanction imposed after a court-initiated show cause order be
limited to a penalty payable to the court and that it be imposed
only if the show cause order is issued before any voluntary
dismissal or an agreement of the parties to settle the claims made
by or against the litigant. Parties settling a case should not be
subsequently faced with an unexpected order from the court leading
to monetary sanctions that might have affected their willingness to
settle or voluntarily dismiss a case. Since show cause orders will
ordinarily be issued only in situations that are akin to a contempt
of court, the rule does not provide a "safe harbor" to a litigant
for withdrawing a claim, defense, etc., after a show cause order
has been issued on the court's own initiative. Such corrective
action, however, should be taken into account in deciding what - if
any - sanction to impose if, after consideration of the litigant's
response, the court concludes that a violation has occurred.
Subdivision (d). Rules 26(g) and 37 establish certification
standards and sanctions that apply to discovery disclosures,
requests, responses, objections, and motions. It is appropriate
that Rules 26 through 37, which are specially designed for the
discovery process, govern such documents and conduct rather than
the more general provisions of Rule 11. Subdivision (d) has been
added to accomplish this result.
Rule 11 is not the exclusive source for control of improper
presentations of claims, defenses, or contentions. It does not
supplant statutes permitting awards of attorney's fees to
prevailing parties or alter the principles governing such awards.
It does not inhibit the court in punishing for contempt, in
exercising its inherent powers, or in imposing sanctions, awarding
expenses, or directing remedial action authorized under other rules
or under 28 U.S.C. Sec. 1927. See Chambers v. NASCO, __ U.S. __
(1991). Chambers cautions, however, against reliance upon inherent
powers if appropriate sanctions can be imposed under provisions
such as Rule 11, and the procedures specified in Rule 11 - notice,
opportunity to respond, and findings - should ordinarily be
employed when imposing a sanction under the court's inherent
powers. Finally, it should be noted that Rule 11 does not preclude
a party from initiating an independent action for malicious
prosecution or abuse of process.
-End-
-CITE-
28 USC APPENDIX Rule 12 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
III. PLEADINGS AND MOTIONS
-HEAD-
Rule 12. Defenses and Objections - When and How Presented - By
Pleading or Motion - Motion for Judgment on the Pleadings
-STATUTE-
(a) When Presented.
(1) Unless a different time is prescribed in a statute of the
United States, a defendant shall serve an answer
(A) within 20 days after being served with the summons and
complaint, or
(B) if service of the summons has been timely waived on
request under Rule 4(d), within 60 days after the date when the
request for waiver was sent, or within 90 days after that date
if the defendant was addressed outside any judicial district of
the United States.
(2) A party served with a pleading stating a cross-claim
against that party shall serve an answer thereto within 20 days
after being served. The plaintiff shall serve a reply to a
counterclaim in the answer within 20 days after service of the
answer, or, if a reply is ordered by the court, within 20 days
after service of the order, unless the order otherwise directs.
(3)(A) The United States, an agency of the United States, or an
officer or employee of the United States sued in an official
capacity, shall serve an answer to the complaint or cross-claim -
or a reply to a counterclaim - within 60 days after the United
States attorney is served with the pleading asserting the claim.
(B) An officer or employee of the United States sued in an
individual capacity for acts or omissions occurring in connection
with the performance of duties on behalf of the United States
shall serve an answer to the complaint or cross-claim - or a
reply to a counterclaim - within 60 days after service on the
officer or employee, or service on the United States attorney,
whichever is later.
(4) Unless a different time is fixed by court order, the
service of a motion permitted under this rule alters these
periods of time as follows:
(A) if the court denies the motion or postpones its
disposition until the trial on the merits, the responsive
pleading shall be served within 10 days after notice of the
court's action; or
(B) if the court grants a motion for a more definite
statement, the responsive pleading shall be served within 10
days after the service of the more definite statement.
(b) How Presented. Every defense, in law or fact, to a claim for
relief in any pleading, whether a claim, counterclaim, cross-claim,
or third-party claim, shall be asserted in the responsive pleading
thereto if one is required, except that the following defenses may
at the option of the pleader be made by motion: (1) lack of
jurisdiction over the subject matter, (2) lack of jurisdiction over
the person, (3) improper venue, (4) insufficiency of process, (5)
insufficiency of service of process, (6) failure to state a claim
upon which relief can be granted, (7) failure to join a party under
Rule 19. A motion making any of these defenses shall be made before
pleading if a further pleading is permitted. No defense or
objection is waived by being joined with one or more other defenses
or objections in a responsive pleading or motion. If a pleading
sets forth a claim for relief to which the adverse party is not
required to serve a responsive pleading, the adverse party may
assert at the trial any defense in law or fact to that claim for
relief. If, on a motion asserting the defense numbered (6) to
dismiss for failure of the pleading to state a claim upon which
relief can be granted, matters outside the pleading are presented
to and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in Rule 56,
and all parties shall be given reasonable opportunity to present
all material made pertinent to such a motion by Rule 56.
(c) Motion for Judgment on the Pleadings. After the pleadings are
closed but within such time as not to delay the trial, any party
may move for judgment on the pleadings. If, on a motion for
judgment on the pleadings, matters outside the pleadings are
presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided in
Rule 56, and all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by Rule 56.
(d) Preliminary Hearings. The defenses specifically enumerated
(1)-(7) in subdivision (b) of this rule, whether made in a pleading
or by motion, and the motion for judgment mentioned in subdivision
(c) of this rule shall be heard and determined before trial on
application of any party, unless the court orders that the hearing
and determination thereof be deferred until the trial.
(e) Motion for More Definite Statement. If a pleading to which a
responsive pleading is permitted is so vague or ambiguous that a
party cannot reasonably be required to frame a responsive pleading,
the party may move for a more definite statement before interposing
a responsive pleading. The motion shall point out the defects
complained of and the details desired. If the motion is granted and
the order of the court is not obeyed within 10 days after notice of
the order or within such other time as the court may fix, the court
may strike the pleading to which the motion was directed or make
such order as it deems just.
(f) Motion To Strike. Upon motion made by a party before
responding to a pleading or, if no responsive pleading is permitted
by these rules, upon motion made by a party within 20 days after
the service of the pleading upon the party or upon the court's own
initiative at any time, the court may order stricken from any
pleading any insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.
(g) Consolidation of Defenses in Motion. A party who makes a
motion under this rule may join with it any other motions herein
provided for and then available to the party. If a party makes a
motion under this rule but omits therefrom any defense or objection
then available to the party which this rule permits to be raised by
motion, the party shall not thereafter make a motion based on the
defense or objection so omitted, except a motion as provided in
subdivision (h)(2) hereof on any of the grounds there stated.
(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person, improper
venue, insufficiency of process, or insufficiency of service of
process is waived (A) if omitted from a motion in the
circumstances described in subdivision (g), or (B) if it is
neither made by motion under this rule nor included in a
responsive pleading or an amendment thereof permitted by Rule
15(a) to be made as a matter of course.
(2) A defense of failure to state a claim upon which relief can
be granted, a defense of failure to join a party indispensable
under Rule 19, and an objection of failure to state a legal
defense to a claim may be made in any pleading permitted or
ordered under Rule 7(a), or by motion for judgment on the
pleadings, or at the trial on the merits.
(3) Whenever it appears by suggestion of the parties or
otherwise that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action.
-SOURCE-
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff.
Dec. 1, 2000.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
Note to Subdivision (a). 1. Compare [former] Equity Rules 12
(Issue of Subpoena - Time for Answer) and 31 (Reply - When Required
- When Cause at Issue); 4 Mont.Rev.Codes Ann. (1935) Secs. 9107,
9158; N.Y.C.P.A. (1937) Sec. 263; N.Y.R.C.P. (1937) Rules 109-111.
2. U.S.C., Title 28, Sec. 763 [now 547] (Petition in action
against United States; service; appearance by district attorney)
provides that the United States as a defendant shall have 60 days
within which to answer or otherwise defend. This and other statutes
which provide 60 days for the United States or an officer or agency
thereof to answer or otherwise defend are continued by this rule.
Insofar as any statutes not excepted in Rule 81 provide a different
time for a defendant to defend, such statutes are modified. See
U.S.C., Title 28, [former] Sec. 45 (District courts; practice and
procedure in certain cases under the interstate commerce laws) (30
days).
3. Compare the last sentence of [former] Equity Rule 29 (Defenses
- How Presented) and N.Y.C.P.A. (1937) Sec. 283. See Rule 15(a) for
time within which to plead to an amended pleading.
Note to Subdivisions (b) and (d). 1. See generally [former]
Equity Rules 29 (Defenses - How Presented), 33 (Testing Sufficiency
of Defense), 43 (Defect of Parties - Resisting Objection), and 44
(Defect of Parties - Tardy Objection); N.Y.C.P.A. (1937) Secs.
277-280; N.Y.R.C.P. (1937) Rules 106-112; English Rules Under the
Judicature Act (The Annual Practice, 1937) O. 25, r.r. 1-4; Clark,
Code Pleading (1928) pp. 371-381.
2. For provisions authorizing defenses to be made in the answer
or reply see English Rules Under the Judicature Act (The Annual
Practice, 1937) O. 25, r.r. 1-4; 1 Miss.Code Ann. (1930) Secs. 378,
379. Compare [former] Equity Rule 29 (Defenses - How Presented);
U.S.C., Title 28, [former] Sec. 45 (District Courts; practice and
procedure in certain cases under the interstate commerce laws).
U.S.C., Title 28, [former] Sec. 45, substantially continued by this
rule, provides: "No replication need be filed to the answer, and
objections to the sufficiency of the petition or answer as not
setting forth a cause of action or defense must be taken at the
final hearing or by motion to dismiss the petition based on said
grounds, which motion may be made at any time before answer is
filed." Compare Calif.Code Civ.Proc. (Deering, 1937) Sec. 433; 4
Nev.Comp.Laws (Hillyer, 1929) Sec. 8600. For provisions that the
defendant may demur and answer at the same time, see Calif.Code
Civ.Proc. (Deering, 1937) Sec. 431; 4 Nev.Comp.Laws (Hillyer, 1929)
Sec. 8598.
3. [Former] Equity Rule 29 (Defenses - How Presented) abolished
demurrers and provided that defenses in point of law arising on the
face of the bill should be made by motion to dismiss or in the
answer, with further provision that every such point of law going
to the whole or material part of the cause or causes stated might
be called up and disposed of before final hearing "at the
discretion of the court." Likewise many state practices have
abolished the demurrer, or retain it only to attack substantial and
not formal defects. See 6 Tenn.Code Ann. (Williams, 1934) Sec.
8784; Ala.Code Ann. (Michie, 1928) Sec. 9479; 2 Mass.Gen.Laws
(Ter.Ed., 1932) ch. 231, Secs. 15-18; Kansas Gen.Stat.Ann. (1935)
Secs. 60-705, 60-706.
Note to Subdivision (c). Compare [former] Equity Rule 33 (Testing
Sufficiency of Defense); N.Y.R.C.P. (1937) Rules 111 and 112.
Note to Subdivisions (e) and (f). Compare [former] Equity Rules
20 (Further and Particular Statement in Pleading May Be Required)
and 21 (Scandal and Impertinence); English Rules Under the
Judicature Act (The Annual Practice, 1937) O. 19, r.r. 7, 7a, 7b,
8; 4 Mont.Rev.Codes Ann. (1935) Secs. 9166, 9167; N.Y.C.P.A. (1937)
Sec. 247; N.Y.R.C.P. (1937) Rules 103, 115, 116, 117;
Wyo.Rev.Stat.Ann. (Courtright, 1931) Secs. 89-1033, 89-1034.
Note to Subdivision (g). Compare Rules of the District Court of
the United States for the District of Columbia (1937), Equity Rule
11; N.M. Rules of Pleading, Practice and Procedure, 38 N.M.Rep. vii
[105-408] (1934); Wash.Gen.Rules of the Superior Courts, 1
Wash.Rev.Stat.Ann. (Remington, 1932) p. 160, Rule VI (e) and (f).
Note to Subdivision (h). Compare Calif.Code Civ.Proc. (Deering,
1937) Sec. 434; 2 Minn.Stat. (Mason, 1927) Sec. 9252; N.Y.C.P.A.
(1937) Secs. 278 and 279; Wash.Gen.Rules of the Superior Courts, 1
Wash.Rev.Stat.Ann. (Remington, 1932) p. 160, Rule VI (e). This rule
continues U.S.C., Title 28, Sec. 80 [now 1359, 1447, 1919]
(Dismissal or remand) (of action over which district court lacks
jurisdiction), while U.S.C., Title 28, Sec. 399 [now 1653]
(Amendments to show diverse citizenship) is continued by Rule 15.
NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT
Subdivision (a). Various minor alterations in language have been
made to improve the statement of the rule. All references to bills
of particulars have been stricken in accordance with changes made
in subdivision (e).
Subdivision (b). The addition of defense (7), "failure to join an
indispensable party", cures an omission in the rules, which are
silent as to the mode of raising such failure. See Commentary,
Manner of Raising Objection of Non-Joinder of Indispensable Party
(1940) 2 Fed.Rules Serv. 658 and (1942) 5 Fed.Rules Serv. 820. In
one case, United States v. Metropolitan Life Ins. Co. (E.D.Pa.
1941) 36 F.Supp. 399, the failure to join an indispensable party
was raised under Rule 12(c).
Rule 12(b)(6), permitting a motion to dismiss for failure of the
complaint to state a claim on which relief can be granted, is
substantially the same as the old demurrer for failure of a
pleading to state a cause of action. Some courts have held that as
the rule by its terms refers to statements in the complaint,
extraneous matter on affidavits, depositions or otherwise, may not
be introduced in support of the motion, or to resist it. On the
other hand, in many cases the district courts have permitted the
introduction of such material. When these cases have reached
circuit courts of appeals in situations where the extraneous
material so received shows that there is no genuine issue as to any
material question of fact and that on the undisputed facts as
disclosed by the affidavits or depositions, one party or the other
is entitled to judgment as a matter of law, the circuit courts,
properly enough, have been reluctant to dispose of the case merely
on the face of the pleading, and in the interest of prompt
disposition of the action have made a final disposition of it. In
dealing with such situations the Second Circuit has made the sound
suggestion that whatever its label or original basis, the motion
may be treated as a motion for summary judgment and disposed of as
such. Samara v. United States (C.C.A.2d, 1942) 129 F.(2d) 594,
cert. den. (1942) 317 U.S. 686; Boro Hall Corp. v. General Motors
Corp. (C.C.A.2d, 1942) 124 F.(2d) 822, cert. den. (1943) 317 U.S.
695. See also Kithcart v. Metropolitan Life Ins. Co. (C.C.A.8th,
1945) 150 F.(2d) 997, aff'g 62 F.Supp. 93.
It has also been suggested that this practice could be justified
on the ground that the federal rules permit "speaking" motions. The
Committee entertains the view that on motion under Rule 12(b)(6) to
dismiss for failure of the complaint to state a good claim, the
trial court should have authority to permit the introduction of
extraneous matter, such as may be offered on a motion for summary
judgment, and if it does not exclude such matter the motion should
then be treated as a motion for summary judgment and disposed of in
the manner and on the conditions stated in Rule 56 relating to
summary judgments, and, of course, in such a situation, when the
case reaches the circuit court of appeals, that court should treat
the motion in the same way. The Committee believes that such
practice, however, should be tied to the summary judgment rule. The
term "speaking motion" is not mentioned in the rules, and if there
is such a thing its limitations are undefined. Where extraneous
matter is received, by tying further proceedings to the summary
judgment rule the courts have a definite basis in the rules for
disposing of the motion.
The Committee emphasizes particularly the fact that the summary
judgment rule does not permit a case to be disposed of by judgment
on the merits on affidavits, which disclose a conflict on a
material issue of fact, and unless this practice is tied to the
summary judgment rule, the extent to which a court, on the
introduction of such extraneous matter, may resolve questions of
fact on conflicting proof would be left uncertain.
The decisions dealing with this general situation may be
generally grouped as follows: (1) cases dealing with the use of
affidavits and other extraneous material on motions; (2) cases
reversing judgments to prevent final determination on mere pleading
allegations alone.
Under group (1) are: Boro Hall Corp. v. General Motors Corp.
(C.C.A.2d, 1942) 124 F.(2d) 822, cert. den. (1943) 317 U.S. 695;
Gallup v. Caldwell (C.C.A.3d, 1941) 120 F.(2d) 90; Central Mexico
Light & Power Co. v. Munch (C.C.A.2d, 1940) 116 F.(2d) 85; National
Labor Relations Board v. Montgomery Ward & Co. (App.D.C. 1944) 144
F.(2d) 528, cert. den. (1944) 65 S.Ct. 134; Urquhart v. American-La
France Foamite Corp. (App.D.C. 1944) 144 F.(2d) 542; Samara v.
United States (C.C.A.2d, 1942) 129 F.(2d) 594; Cohen v. American
Window Glass Co. (C.C.A.2d, 1942) 126 F.(2d) 111; Sperry Products
Inc. v. Association of American Railroads (C.C.A.2d, 1942) 132
F.(2d) 408; Joint Council Dining Car Employees Local 370 v.
Delaware, Lackawanna and Western R. Co. (C.C.A.2d, 1946) 157 F.(2d)
417; Weeks v. Bareco Oil Co. (C.C.A.7th, 1941) 125 F.(2d) 84;
Carroll v. Morrison Hotel Corp. (C.C.A.7th, 1945) 149 F.(2d) 404;
Victory v. Manning (C.C.A.3rd, 1942) 128 F.(2d) 415; Locals No.
1470, No. 1469, and 1512 of International Longshoremen's
Association v. Southern Pacific Co. (C.C.A.5th, 1942) 131 F.(2d)
605; Lucking v. Delano (C.C.A.6th, 1942) 129 F.(2d) 283; San
Francisco Lodge No. 68 of International Association of Machinists
v. Forrestal (N.D.Cal. 1944) 58 F.Supp. 466; Benson v. Export
Equipment Corp. (N. Mex. 1945) 164 P.2d 380 (construing New Mexico
rule identical with Rule 12(b)(6); F. E. Myers & Bros. Co. v. Gould
Pumps, Inc. (W.D.N.Y. 1946) 9 Fed.Rules Serv. 12b.33, Case 2, 5
F.R.D. 132. Cf. Kohler v. Jacobs (C.C.A.5th, 1943) 138 F.(2d) 440;
Cohen v. United States (C.C.A.8th, 1942) 129 F.(2d) 733.
Under group (2) are: Sparks v. England (C.C.A.8th, 1940) 113
F.(2d) 579; Continental Collieries, Inc. v. Shober (C.C.A.3d, 1942)
130 F.(2d) 631; Downey v. Palmer (C.C.A.2d 1940) 114 F.(2d) 116;
DeLoach v. Crowley's Inc. (C.C.A.5th, 1942) 128 F.(2d) 378; Leimer
v. State Mutual Life Assurance Co. of Worcester, Mass. (C.C.A.8th,
1940) 108 F.(2d) 302; Rossiter v. Vogel (C.C.A.2d, 1943) 134 F.(2d)
908, compare s. c. (C.C.A.2d, 1945) 148 F.(2d) 292; Karl Kiefer
Machine Co. v. United States Bottlers Machinery Co. (C.C.A.7th,
1940) 113 F.(2d) 356; Chicago Metallic Mfg. Co. v. Edward Katzinger
Co. (C.C.A.7th, 1941) 123 F.(2d) 518; Louisiana Farmers' Protective
Union, Inc. v. Great Atlantic & Pacific Tea Co. of America, Inc.
(C.C.A.8th, 1942) 131 F.(2d) 419; Publicity Bldg. Realty Corp. v.
Hannegan (C.C.A.8th, 1943) 139 F.(2d) 583; Dioguardi v. Durning
(C.C.A.2d, 1944) 139 F.(2d) 774; Package Closure Corp. v. Sealright
Co., Inc. (C.C.A.2d, 1944) 141 F.(2d) 972; Tahir Erk v. Glenn L.
Martin Co. (C.C.A.4th, 1941) 116 F.(2d) 865; Bell v. Preferred Life
Assurance Society of Montgomery, Ala. (1943) 320 U.S. 238.
The addition at the end of subdivision (b) makes it clear that on
a motion under Rule 12(b)(6) extraneous material may not be
considered if the court excludes it, but that if the court does not
exclude such material the motion shall be treated as a motion for
summary judgment and disposed of as provided in Rule 56. It will
also be observed that if a motion under Rule 12(b)(6) is thus
converted into a summary judgment motion, the amendment insures
that both parties shall be given a reasonable opportunity to submit
affidavits and extraneous proofs to avoid taking a party by
surprise through the conversion of the motion into a motion for
summary judgment. In this manner and to this extent the amendment
regularizes the practice above described. As the courts are already
dealing with cases in this way, the effect of this amendment is
really only to define the practice carefully and apply the
requirements of the summary judgment rule in the disposition of the
motion.
Subdivision (c). The sentence appended to subdivision (c)
performs the same function and is grounded on the same reasons as
the corresponding sentence added in subdivision (b).
Subdivision (d). The change here was made necessary because of
the addition of defense (7) in subdivision (b).
Subdivision (e). References in this subdivision to a bill of
particulars have been deleted, and the motion provided for is
confined to one for a more definite statement, to be obtained only
in cases where the movant cannot reasonably be required to frame an
answer or other responsive pleading to the pleading in question.
With respect to preparations for trial, the party is properly
relegated to the various methods of examination and discovery
provided in the rules for that purpose. Slusher v. Jones (E.D.Ky.
1943) 7 Fed.Rules Serv. 12e.231, Case 5, 3 F.R.D. 168; Best Foods,
Inc. v. General Mills, Inc. (D.Del. 1943) 7 Fed.Rules Serv.
12e.231, Case 7, 3 F.R.D. 275; Braden v. Callaway (E.D.Tenn. 1943)
8 Fed.Rules Serv. 12e.231, Case 1 (". . . most courts . . .
conclude that the definiteness required is only such as will be
sufficient for the party to prepare responsive pleadings").
Accordingly, the reference to the 20 day time limit has also been
eliminated, since the purpose of this present provision is to state
a time period where the motion for a bill is made for the purpose
of preparing for trial.
Rule 12(e) as originally drawn has been the subject of more
judicial rulings than any other part of the rules, and has been
much criticized by commentators, judges and members of the bar. See
general discussion and cases cited in 1 Moore's Federal Practice
(1938), Cum.Supplement Sec. 12.07, under "Page 657"; also,
Holtzoff, New Federal Procedure and the Courts (1940) 35-41. And
compare vote of Second Circuit Conference of Circuit and District
Judges (June 1940) recommending the abolition of the bill of
particulars; Sun Valley Mfg. Co. v. Mylish (E.D.Pa. 1944) 8
Fed.Rules Serv. 12e.231, Case 6 ("Our experience . . . has
demonstrated not only that 'the office of the bill of particulars
is fast becoming obsolete' . . . but that in view of the adequate
discovery procedure available under the Rules, motions for bills of
particulars should be abolished altogether."); Walling v. American
Steamship Co. (W.D.N.Y. 1945) 4 F.R.D. 355, 8 Fed.Rules Serv.
12e.244, Case 8 (". . . the adoption of the rule was ill advised.
It has led to confusion, duplication and delay.") The tendency of
some courts freely to grant extended bills of particulars has
served to neutralize any helpful benefits derived from Rule 8, and
has overlooked the intended use of the rules on depositions and
discovery. The words "or to prepare for trial" - eliminated by the
proposed amendment - have sometimes been seized upon as grounds for
compulsory statement in the opposing pleading of all the details
which the movant would have to meet at the trial. On the other
hand, many courts have in effect read these words out of the rule.
See Walling v. Alabama Pipe Co. (W.D.Mo. 1942) 6 Fed.Rules Serv.
12e.244, Case 7; Fleming v. Mason & Dixon Lines, Inc. (E.D.Tenn.
1941) 42 F.Supp. 230; Kellogg Co. v. National Biscuit Co. (D.N.J.
1941) 38 F.Supp. 643; Brown v. H. L. Green Co. (S.D.N.Y. 1943) 7
Fed.Rules Serv. 12e.231, Case 6; Pedersen v. Standard Accident Ins.
Co. (W.D.Mo. 1945) 8 Fed.Rules Serv. 12e.231, Case 8; Bowles v.
Ohse (D.Neb. 1945) 4 F.R.D. 403, 9 Fed.Rules Serv. 12e.231, Case 1;
Klages v. Cohen (E.D.N.Y. 1945) 9 Fed.Rules Serv. 8a.25, Case 4;
Bowles v. Lawrence (D.Mass. 1945) 8 Fed.Rules Serv. 12e.231, Case
19; McKinney Tool & Mfg. Co. v. Hoyt (N.D.Ohio 1945) 9 Fed.Rules
Serv. 12e.235, Case 1; Bowles v. Jack (D.Minn. 1945) 5 F.R.D. 1, 9
Fed.Rules Serv. 12e.244, Case 9. And it has been urged from the
bench that the phrase be stricken. Poole v. White (N.D.W.Va. 1941).
5 Fed.Rules Serv. 12e.231, Case 4, 2 F.R.D. 40. See also Bowles v.
Gabel (W.D.Mo. 1946) 9 Fed.Rules Serv. 12e.244, Case 10 ("The
courts have never favored that portion of the rules which undertook
to justify a motion of this kind for the purpose of aiding counsel
in preparing his case for trial.").
Subdivision (f). This amendment affords a specific method of
raising the insufficiency of a defense, a matter which has troubled
some courts, although attack has been permitted in one way or
another. See Dysart v. Remington-Rand, Inc. (D.Conn. 1939) 31
F.Supp. 296; Eastman Kodak Co. v. McAuley (S.D.N.Y. 1941) 4
Fed.Rules Serv. 12f.21, Case 8, 2 F.R.D. 21; Schenley Distillers
Corp. v. Renken (E.D.S.C. 1940) 34 F.Supp. 678; Yale Transport
Corp. v. Yellow Truck & Coach Mfg. Co. (S.D.N.Y. 1944) 3 F.R.D.
440; United States v. Turner Milk Co. (N.D.Ill. 1941) 4 Fed.Rules
Serv. 12b.51, Case 3, 1 F.R.D. 643; Teiger v. Stephan Oderwald,
Inc. (S.D.N.Y. 1940) 31 F.Supp. 626; Teplitsky v. Pennsylvania R.
Co. (N.D.Ill. 1941) 38 F.Supp. 535; Gallagher v. Carroll (E.D.N.Y.
1939) 27 F.Supp. 568; United States v. Palmer (S.D.N.Y. 1939) 28
F.Supp. 936. And see Indemnity Ins. Co. of North America v. Pan
American Airways, Inc. (S.D.N.Y. 1944) 58 F.Supp. 338; Commentary,
Modes of Attacking Insufficient Defenses in the Answer (1939) 1
Fed.Rules Serv. 669 (1940) 2 Fed.Rules Serv. 640.
Subdivision (g). The change in title conforms with the companion
provision in subdivision (h).
The alteration of the "except" clause requires that other than
provided in subdivision (h) a party who resorts to a motion to
raise defenses specified in the rule, must include in one motion
all that are then available to him. Under the original rule
defenses which could be raised by motion were divided into two
groups which could be the subjects of two successive motions.
Subdivision (h). The addition of the phrase relating to
indispensable parties is one of necessity.
NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT
This amendment conforms to the amendment of Rule 4(e). See also
the Advisory Committee's Note to amended Rule 4(b).
NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT
Subdivision (b)(7). The terminology of this subdivision is
changed to accord with the amendment of Rule 19. See the Advisory
Committee's Note to Rule 19, as amended, especially the third
paragraph therein before the caption "Subdivision (c)."
Subdivision (g). Subdivision (g) has forbidden a defendant who
makes a preanswer motion under this rule from making a further
motion presenting any defense or objection which was available to
him at the time he made the first motion and which he could have
included, but did not in fact include therein. Thus if the
defendant moves before answer to dismiss the complaint for failure
to state a claim, he is barred from making a further motion
presenting the defense of improper venue, if that defense was
available to him when he made his original motion. Amended
subdivision (g) is to the same effect. This required consolidation
of defenses and objections in a Rule 12 motion is salutary in that
it works against piecemeal consideration of a case. For exceptions
to the requirement of consolidation, see the last clause of
subdivision (g), referring to new subdivision (h)(2).
Subdivision (h). The question has arisen whether an omitted
defense which cannot be made the basis of a second motion may
nevertheless be pleaded in the answer. Subdivision (h) called for
waiver of "* * * defenses and objections which he [defendant] does
not present * * * by motion * * * or, if he has made no motion, in
his answer * * *." If the clause "if he has made no motion," was
read literally, it seemed that the omitted defense was waived and
could not be pleaded in the answer. On the other hand, the clause
might be read as adding nothing of substance to the preceding
words; in that event it appeared that a defense was not waived by
reason of being omitted from the motion and might be set up in the
answer. The decisions were divided. Favoring waiver, see Keefe v.
Derounian, 6 F.R.D. 11 (N.D.Ill. 1946); Elbinger v. Precision Metal
Workers Corp., 18 F.R.D. 467 (E.D.Wis. 1956); see also Rensing v.
Turner Aviation Corp., 166 F.Supp. 790 (N.D.Ill. 1958); P.
Beiersdorf & Co. v. Duke Laboratories, Inc., 10 F.R.D. 282
(S.D.N.Y. 1950); Neset v. Christensen, 92 F.Supp. 78 (E.D.N.Y.
1950). Opposing waiver, see Phillips v. Baker, 121 F.2d 752 (9th
Cir. 1941); Crum v. Graham, 32 F.R.D. 173 (D.Mont. 1963)
(regretfully following the Phillips case); see also Birnbaum v.
Birrell, 9 F.R.D. 72 (S.D.N.Y. 1948); Johnson v. Joseph Schlitz
Brewing Co., 33 F.Supp. 176 (E.D.Tenn. 1940); cf. Carter v.
American Bus Lines, Inc., 22 F.R.D. 323 (D.Neb. 1958).
Amended subdivision (h)(1)(A) eliminates the ambiguity and states
that certain specified defenses which were available to a party
when he made a preanswer motion, but which he omitted from the
motion, are waived. The specified defenses are lack of jurisdiction
over the person, improper venue, insufficiency of process, and
insufficiency of service of process (see Rule 12(b)(2)-(5)). A
party who by motion invites the court to pass upon a threshold
defense should bring forward all the specified defenses he then has
and thus allow the court to do a reasonably complete job. The
waiver reinforces the policy of subdivision (g) forbidding
successive motions.
By amended subdivision (h)(1)(B), the specified defenses, even if
not waived by the operation of (A), are waived by the failure to
raise them by a motion under Rule 12 or in the responsive pleading
or any amendment thereof to which the party is entitled as a matter
of course. The specified defenses are of such a character that they
should not be delayed and brought up for the first time by means of
an application to the court to amend the responsive pleading.
Since the language of the subdivisions is made clear, the party
is put on fair notice of the effect of his actions and omissions
and can guard himself against unintended waiver. It is to be noted
that while the defenses specified in subdivision (h)(1) are subject
to waiver as there provided, the more substantial defenses of
failure to state a claim upon which relief can be granted, failure
to join a party indispensable under Rule 19, and failure to state a
legal defense to a claim (see Rule 12(b)(6), (7), (f)), as well as
the defense of lack of jurisdiction over the subject matter (see
Rule 12(b)(1)), are expressly preserved against waiver by amended
subdivision (h)(2) and (3).
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendments are technical. No substantive change is intended.
NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT
Subdivision (a) is divided into paragraphs for greater clarity,
and paragraph (1)(B) is added to reflect amendments to Rule 4.
Consistent with Rule 4(d)(3), a defendant that timely waives
service is allowed 60 days from the date the request was mailed in
which to respond to the complaint, with an additional 30 days
afforded if the request was sent out of the country. Service is
timely waived if the waiver is returned within the time specified
in the request (30 days after the request was mailed, or 60 days if
mailed out of the country) and before being formally served with
process. Sometimes a plaintiff may attempt to serve a defendant
with process while also sending the defendant a request for waiver
of service; if the defendant executes the waiver of service within
the time specified and before being served with process, it should
have the longer time to respond afforded by waiving service.
The date of sending the request is to be inserted by the
plaintiff on the face of the request for waiver and on the waiver
itself. This date is used to measure the return day for the waiver
form, so that the plaintiff can know on a day certain whether
formal service of process will be necessary; it is also a useful
date to measure the time for answer when service is waived. The
defendant who returns the waiver is given additional time for
answer in order to assure that it loses nothing by waiving service
of process.
COMMITTEE NOTES ON RULES - 2000 AMENDMENT
Rule 12(a)(3)(B) is added to complement the addition of Rule
4(i)(2)(B). The purposes that underlie the requirement that service
be made on the United States in an action that asserts individual
liability of a United States officer or employee for acts occurring
in connection with the performance of duties on behalf of the
United States also require that the time to answer be extended to
60 days. Time is needed for the United States to determine whether
to provide representation to the defendant officer or employee. If
the United States provides representation, the need for an extended
answer period is the same as in actions against the United States,
a United States agency, or a United States officer sued in an
official capacity.
An action against a former officer or employee of the United
States is covered by subparagraph (3)(B) in the same way as an
action against a present officer or employee. Termination of the
relationship between the individual defendant and the United States
does not reduce the need for additional time to answer.
GAP Report. No changes are recommended for Rule 12 as published.
-End-
-CITE-
28 USC APPENDIX Rule 13 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
III. PLEADINGS AND MOTIONS
-HEAD-
Rule 13. Counterclaim and Cross-Claim
-STATUTE-
(a) Compulsory Counterclaims. A pleading shall state as a
counterclaim any claim which at the time of serving the pleading
the pleader has against any opposing party, if it arises out of the
transaction or occurrence that is the subject matter of the
opposing party's claim and does not require for its adjudication
the presence of third parties of whom the court cannot acquire
jurisdiction. But the pleader need not state the claim if (1) at
the time the action was commenced the claim was the subject of
another pending action, or (2) the opposing party brought suit upon
the claim by attachment or other process by which the court did not
acquire jurisdiction to render a personal judgment on that claim,
and the pleader is not stating any counterclaim under this Rule 13.
(b) Permissive Counterclaims. A pleading may state as a
counterclaim any claim against an opposing party not arising out of
the transaction or occurrence that is the subject matter of the
opposing party's claim.
(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or
may not diminish or defeat the recovery sought by the opposing
party. It may claim relief exceeding in amount or different in kind
from that sought in the pleading of the opposing party.
(d) Counterclaim Against the United States. These rules shall not
be construed to enlarge beyond the limits now fixed by law the
right to assert counterclaims or to claim credits against the
United States or an officer or agency thereof.
(e) Counterclaim Maturing or Acquired After Pleading. A claim
which either matured or was acquired by the pleader after serving a
pleading may, with the permission of the court, be presented as a
counterclaim by supplemental pleading.
(f) Omitted Counterclaim. When a pleader fails to set up a
counterclaim through oversight, inadvertence, or excusable neglect,
or when justice requires, the pleader may by leave of court set up
the counterclaim by amendment.
(g) Cross-Claim Against Co-Party. A pleading may state as a
cross-claim any claim by one party against a co-party arising out
of the transaction or occurrence that is the subject matter either
of the original action or of a counterclaim therein or relating to
any property that is the subject matter of the original action.
Such cross-claim may include a claim that the party against whom it
is asserted is or may be liable to the cross-claimant for all or
part of a claim asserted in the action against the cross-claimant.
(h) Joinder of Additional Parties. Persons other than those made
parties to the original action may be made parties to a
counterclaim or cross-claim in accordance with the provisions of
Rules 19 and 20.
(i) Separate Trials; Separate Judgments. If the court orders
separate trials as provided in Rule 42(b), judgment on a
counterclaim or cross-claim may be rendered in accordance with the
terms of Rule 54(b) when the court has jurisdiction so to do, even
if the claims of the opposing party have been dismissed or
otherwise disposed of.
-SOURCE-
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
1. This is substantially [former] Equity Rule 30 (Answer -
Contents - Counterclaim), broadened to include legal as well as
equitable counterclaims.
2. Compare the English practice, English Rules Under the
Judicature Act (The Annual Practice, 1937) O. 19, r.r. 2 and 3, and
O. 21, r.r. 10 - 17; Beddall v. Maitland, L.R. 17 Ch.Div. 174, 181,
182 (1881).
3. Certain States have also adopted almost unrestricted
provisions concerning both the subject matter of and the parties to
a counterclaim. This seems to be the modern tendency. Ark.Civ.Code
(Crawford, 1934) Secs. 117 (as amended) and 118; N.J.Comp.Stat. (2
Cum.Supp. 1911-1924), N.Y.C.P.A. (1937) Secs. 262, 266, 267 (all as
amended, Laws of 1936, ch. 324), 268, 269, and 271; Wis.Stat.
(1935) Sec. 263.14 (1)(c).
4. Most codes do not expressly provide for a counterclaim in the
reply. Clark, Code Pleading (1928), p. 486. Ky.Codes (Carroll,
1932) Civ.Pract. Sec. 98 does provide, however, for such
counterclaim.
5. The provisions of this rule respecting counterclaims are
subject to Rule 82 (Jurisdiction and Venue Unaffected). For a
discussion of Federal jurisdiction and venue in regard to
counterclaims and cross-claims, see Shulman and Jaegerman, Some
Jurisdictional Limitations in Federal Procedure (1936), 45 Yale
L.J. 393, 410 et seq.
6. This rule does not affect such statutes of the United States
as U.S.C., Title 28, Sec. 41(1) [now 1332, 1345, 1359] (United
States as plaintiff; civil suits at common law and in equity),
relating to assigned claims in actions based on diversity of
citizenship.
7. If the action proceeds to judgment without the interposition
of a counterclaim as required by subdivision (a) of this rule, the
counterclaim is barred. See American Mills Co. v. American Surety
Co., 260 U.S. 360 (1922); Marconi Wireless Telegraph Co. v.
National Electric Signalling Co., 206 Fed. 295 (E.D.N.Y., 1913);
Hopkins, Federal Equity Rules (8th ed., 1933), p. 213; Simkins,
Federal Practice (1934), p. 663
8. For allowance of credits against the United States see U.S.C.,
Title 26, Secs. 1672-1673 [see 7442] (Suits for refunds of internal
revenue taxes - limitations); U.S.C., Title 28, Secs. 774 [now
2406] (Suits by United States against individuals; credits),
[former] 775 (Suits under postal laws; credits); U.S.C., Title 31,
Sec. 227 [now 3728] (Offsets against judgments and claims against
United States).
NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT
Subdivision (a). The use of the word "filing" was inadvertent.
The word "serving" conforms with subdivision (e) and with usage
generally throughout the rules.
The removal of the phrase "not the subject of a pending action"
and the addition of the new clause at the end of the subdivision is
designed to eliminate the ambiguity noted in Prudential Insurance
Co. of America v. Saxe (App.D.C. 1943) 134 F.(2d) 16, 33-34, cert.
den. (1943) 319 U.S. 745. The rewording of the subdivision in this
respect insures against an undesirable possibility presented under
the original rule whereby a party having a claim which would be the
subject of a compulsory counterclaim could avoid stating it as such
by bringing an independent action in another court after the
commencement of the federal action but before serving his pleading
in the federal action.
Subdivision (g). The amendment is to care for a situation such as
where a second mortgagee is made defendant in a foreclosure
proceeding and wishes to file a cross-complaint against the
mortgagor in order to secure a personal judgment for the
indebtedness and foreclose his lien. A claim of this sort by the
second mortgagee may not necessarily arise out of the transaction
or occurrence that is the subject matter of the original action
under the terms of Rule 13(g).
Subdivision (h). The change clarifies the interdependence of
Rules 13(i) and 54(b).
NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT
When a defendant, if he desires to defend his interest in
property, is obliged to come in and litigate in a court to whose
jurisdiction he could not ordinarily be subjected, fairness
suggests that he should not be required to assert counterclaims,
but should rather be permitted to do so at his election. If,
however, he does elect to assert a counterclaim, it seems fair to
require him to assert any other which is compulsory within the
meaning of Rule 13(a). Clause (2), added by amendment to Rule
13(a), carries out this idea. It will apply to various cases
described in Rule 4(e), as amended, where service is effected
through attachment or other process by which the court does not
acquire jurisdiction to render a personal judgment against the
defendant. Clause (2) will also apply to actions commenced in State
courts jurisdictionally grounded on attachment or the like, and
removed to the Federal courts.
NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT
Rule 13(h), dealing with the joinder of additional parties to a
counterclaim or cross-claim, has partaken of some of the textual
difficulties of Rule 19 on necessary joinder of parties. See
Advisory Committee's Note to Rule 19, as amended; cf. 3 Moore's
Federal Practice, Par. 13.39 (2d ed. 1963), and Supp. thereto; 1A
Barron & Holtzoff, Federal Practice and Procedure Sec. 399 (Wright
ed. 1960). Rule 13(h) has also been inadequate in failing to call
attention to the fact that a party pleading a counterclaim or
cross-claim may join additional persons when the conditions for
permissive joinder of parties under Rule 20 are satisfied.
The amendment of Rule 13(h) supplies the latter omission by
expressly referring to Rule 20, as amended, and also incorporates
by direct reference the revised criteria and procedures of Rule 19,
as amended. Hereafter, for the purpose of determining who must or
may be joined as additional parties to a counterclaim or
cross-claim, the party pleading the claim is to be regarded as a
plaintiff and the additional parties as plaintiffs or defendants as
the case may be, and amended Rules 19 and 20 are to be applied in
the usual fashion. See also Rules 13(a) (compulsory counterclaims)
and 22 (interpleader).
The amendment of Rule 13(h), like the amendment of Rule 19, does
not attempt to regulate Federal jurisdiction or venue. See Rule 82.
It should be noted, however, that in some situations the decisional
law has recognized "ancillary" Federal jurisdiction over
counterclaims and cross-claims and "ancillary" venue as to parties
to these claims.
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendments are technical. No substantive change is intended.
-End-
-CITE-
28 USC APPENDIX Rule 14 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
III. PLEADINGS AND MOTIONS
-HEAD-
Rule 14. Third-Party Practice
-STATUTE-
(a) When Defendant May Bring in Third Party. At any time after
commencement of the action a defending party, as a third-party
plaintiff, may cause a summons and complaint to be served upon a
person not a party to the action who is or may be liable to the
third-party plaintiff for all or part of the plaintiff's claim
against the third-party plaintiff. The third-party plaintiff need
not obtain leave to make the service if the third-party plaintiff
files the third-party complaint not later than 10 days after
serving the original answer. Otherwise the third-party plaintiff
must obtain leave on motion upon notice to all parties to the
action. The person served with the summons and third-party
complaint, hereinafter called the third-party defendant, shall make
any defenses to the third-party plaintiff's claim as provided in
Rule 12 and any counterclaims against the third-party plaintiff and
cross-claims against other third-party defendants as provided in
Rule 13. The third-party defendant may assert against the plaintiff
any defenses which the third-party plaintiff has to the plaintiff's
claim. The third-party defendant may also assert any claim against
the plaintiff arising out of the transaction or occurrence that is
the subject matter of the plaintiff's claim against the third-party
plaintiff. The plaintiff may assert any claim against the
third-party defendant arising out of the transaction or occurrence
that is the subject matter of the plaintiff's claim against the
third-party plaintiff, and the third-party defendant thereupon
shall assert any defenses as provided in Rule 12 and any
counterclaims and cross-claims as provided in Rule 13. Any party
may move to strike the third-party claim, or for its severance or
separate trial. A third-party defendant may proceed under this rule
against any person not a party to the action who is or may be
liable to the third-party defendant for all or part of the claim
made in the action against the third-party defendant. The
third-party complaint, if within the admiralty and maritime
jurisdiction, may be in rem against a vessel, cargo, or other
property subject to admiralty or maritime process in rem, in which
case references in this rule to the summons include the warrant of
arrest, and references to the third-party plaintiff or defendant
include, where appropriate, a person who asserts a right under
Supplemental Rule C(6)(b)(i) in the property arrested.
(b) When Plaintiff May Bring in Third Party. When a counterclaim
is asserted against a plaintiff, the plaintiff may cause a third
party to be brought in under circumstances which under this rule
would entitle a defendant to do so.
(c) Admiralty and Maritime Claims. When a plaintiff asserts an
admiralty or maritime claim within the meaning of Rule 9(h), the
defendant or person who asserts a right under Supplemental Rule
C(6)(b)(i), as a third-party plaintiff, may bring in a third-party
defendant who may be wholly or partly liable, either to the
plaintiff or to the third-party plaintiff, by way of remedy over,
contribution, or otherwise on account of the same transaction,
occurrence, or series of transactions or occurrences. In such a
case the third-party plaintiff may also demand judgment against the
third-party defendant in favor of the plaintiff, in which event the
third-party defendant shall make any defenses to the claim of the
plaintiff as well as to that of the third-party plaintiff in the
manner provided in Rule 12 and the action shall proceed as if the
plaintiff had commenced it against the third-party defendant as
well as the third-party plaintiff.
-SOURCE-
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
Third-party impleader is in some aspects a modern innovation in
law and equity although well known in admiralty. Because of its
many advantages a liberal procedure with respect to it has
developed in England, in the Federal admiralty courts, and in some
American State jurisdictions. See English Rules Under the
Judicature Act (The Annual Practice, 1937) O. 16A, r.r. 1-13;
United States Supreme Court Admiralty Rules (1920), Rule 56 (Right
to Bring in Party Jointly Liable); Pa.Stat.Ann. (Purdon, 1936)
Title 12, Sec. 141; Wis.Stat. (1935) Secs. 260.19, 260.20;
N.Y.C.P.A. (1937) Secs. 193 (2), 211(a). Compare La.Code Pract.
(Dart, 1932) Secs. 378-388. For the practice in Texas as developed
by judicial decision, see Lottman v. Cuilla, 288 S.W. 123, 126
(Tex., 1926). For a treatment of this subject see Gregory,
Legislative Loss Distribution in Negligence Actions (1936); Shulman
and Jaegerman, Some Jurisdictional Limitations on Federal Procedure
(1936), 45 Yale L.J. 393, 417, et seq.
Third-party impleader under the conformity act has been applied
in actions at law in the Federal courts. Lowry and Co., Inc., v.
National City Bank of New York, 28 F.(2d) 895 (S.D.N.Y., 1928);
Yellow Cab Co. of Philadelphia v. Rodgers, 61 F.(2d) 729 (C.C.A.3d,
1932).
NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT
The provisions in Rule 14(a) which relate to the impleading of a
third party who is or may be liable to the plaintiff have been
deleted by the proposed amendment. It has been held that under Rule
14(a) the plaintiff need not amend his complaint to state a claim
against such third party if he does not wish to do so. Satink v.
Holland Township (D.N.J. 1940) 31 F.Supp. 229, noted (1940) 88
U.Pa.L.Rev. 751; Connelly v. Bender (E.D.Mich. 1941) 36 F.Supp.
368; Whitmire v. Partin v. Milton (E.D.Tenn. 1941) 5 Fed.Rules
Serv. 14a.513, Case 2; Crim v. Lumbermen's Mutual Casualty Co.
(D.D.C. 1939) 26 F.Supp. 715; Carbola Chemical Co., Inc. v. Trundle
(S.D.N.Y. 1943) 7 Fed.Rules Serv. 14a.224, Case 1; Roadway Express,
Inc. v. Automobile Ins. Co. of Hartford, Conn. v. Providence
Washington Ins. Co. (N.D.Ohio 1945) 8 Fed.Rules Serv. 14a.513, Case
3. In Delano v. Ives (E.D.Pa. 1941) 40 F.Supp. 672, the court said:
". . . the weight of authority is to the effect that a defendant
cannot compel the plaintiff, who has sued him, to sue also a third
party whom he does not wish to sue, by tendering in a third party
complaint the third party as an additional defendant directly
liable to the plaintiff." Thus impleader here amounts to no more
than a mere offer of a party to the plaintiff, and if he rejects
it, the attempt is a time-consuming futility. See Satink v. Holland
Township, supra; Malkin v. Arundel Corp. (D.Md. 1941) 36 F.Supp.
948; also Koenigsberger, Suggestions for Changes in the Federal
Rules of Civil Procedure, (1941) 4 Fed.Rules Serv. 1010. But cf.
Atlantic Coast Line R. Co. v. United States Fidelity & Guaranty Co.
(M.D.Ga. 1943) 52 F.Supp. 177. Moreover, in any case where the
plaintiff could not have joined the third party originally because
of jurisdictional limitations such as lack of diversity of
citizenship, the majority view is that any attempt by the plaintiff
to amend his complaint and assert a claim against the impleaded
third party would be unavailing. Hoskie v. Prudential Ins. Co. of
America v. Lorrac Real Estate Corp. (E.D.N.Y. 1941) 39 F.Supp. 305;
Johnson v. G. J. Sherrard Co. v. New England Telephone & Telegraph
Co. (D.Mass. 1941) 5 Fed.Rules Serv. 14a.511, Case 1, 2 F.R.D. 164;
Thompson v. Cranston (W.D.N.Y. 1942) 6 Fed.Rules Serv. 14a.511,
Case 1, 2 F.R.D. 270, aff'd (C.C.A.2d, 1942) 132 F.(2d) 631, cert.
den. (1943) 319 U.S. 741; Friend v. Middle Atlantic Transportation
Co. (C.C.A.2d, 1946) 153 F.(2d) 778, cert. den. (1946) 66 S.Ct.
1370; Herrington v. Jones (E.D.La. 1941) 5 Fed.Rules Serv. 14a.511,
Case 2, 2 F.R.D. 108; Banks v. Employers' Liability Assurance Corp.
v. Central Surety & Ins. Corp. (W.D.Mo. 1943) 7 Fed.Rules Serv.
14a.11, Case 2; Saunders v. Baltimore & Ohio R. Co. (S.D.W.Va.
1945) 9 Fed.Rules Serv. 14a.62, Case 2; Hull v. United States
Rubber Co. v. Johnson Larsen & Co. (E.D.Mich. 1945) 9 Fed.Rules
Serv. 14a.62, Case 3. See also concurring opinion of Circuit Judge
Minton in People of State of Illinois for use of Trust Co. of
Chicago v. Maryland Casualty Co. (C.C.A.7th, 1942) 132 F.(2d) 850,
853. Contra: Sklar v. Hayes v. Singer (E.D.Pa. 1941) 4 Fed.Rules
Serv. 14a.511, Case 2, 1 F.R.D. 594. Discussion of the problem will
be found in Commentary, Amendment of Plaintiff's Pleading to Assert
Claim Against Third-Party Defendant (1942) 5 Fed.Rules Serv. 811;
Commentary, Federal Jurisdiction in Third-Party Practice (1943) 6
Fed.Rules Serv. 766; Holtzoff, Some Problems Under Federal
Third-Party Practice (1941) 3 La.L.Rev. 408, 419-420; 1. Moore's
Federal Practice (1938) Cum.Supplement Sec. 14.08. For these
reasons therefore, the words "or to the plaintiff" in the first
sentence of subdivision (a) have been removed by the amendment; and
in conformance therewith the words "the plaintiff" in the second
sentence of the subdivision, and the words "or to the third-party
plaintiff" in the concluding sentence thereof have likewise been
eliminated.
The third sentence of Rule 14(a) has been expanded to clarify the
right of the third-party defendant to assert any defenses which the
third-party plaintiff may have to the plaintiff's claim. This
protects the impleaded third-party defendant where the third-party
plaintiff fails or neglects to assert a proper defense to the
plaintiff's action. A new sentence has also been inserted giving
the third-party defendant the right to assert directly against the
original plaintiff any claim arising out of the transaction or
occurrence that is the subject matter of the plaintiff's claim
against the third-party plaintiff. This permits all claims arising
out of the same transaction or occurrence to be heard and
determined in the same action. See Atlantic Coast Line R. Co. v.
United States Fidelity & Guaranty Co. (M.D.Ga. 1943) 52 F.Supp.
177. Accordingly, the next to the last sentence of subdivision (a)
has also been revised to make clear that the plaintiff may, if he
desires, assert directly against the third-party defendant either
by amendment or by a new pleading any claim he may have against him
arising out of the transaction or occurrence that is the subject
matter of the plaintiff's claim against the third-party plaintiff.
In such a case, the third-party defendant then is entitled to
assert the defenses, counterclaims and cross-claims provided in
Rules 12 and 13.
The sentence reading "The third-party defendant is bound by the
adjudication of the third-party plaintiff's liability to the
plaintiff, as well as of his own to the plaintiff, or to the
third-party plaintiff" has been stricken from Rule 14(a), not to
change the law, but because the sentence states a rule of
substantive law which is not within the scope of a procedural rule.
It is not the purpose of the rules to state the effect of a
judgment.
The elimination of the words "the third-party plaintiff, or any
other party" from the second sentence of Rule 14(a), together with
the insertion of the new phrases therein, are not changes of
substance but are merely for the purpose of clarification.
NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT
Under the amendment of the initial sentences of the subdivision,
a defendant as a third-party plaintiff may freely and without leave
of court bring in a third-party defendant if he files the
third-party complaint not later than 10 days after he serves his
original answer. When the impleader comes so early in the case,
there is little value in requiring a preliminary ruling by the
court on the propriety of the impleader.
After the third-party defendant is brought in, the court has
discretion to strike the third-party claim if it is obviously
unmeritorious and can only delay or prejudice the disposition of
the plaintiff's claim, or to sever the third-party claim or accord
it separate trial if confusion or prejudice would otherwise result.
This discretion, applicable not merely to the cases covered by the
amendment where the third-party defendant is brought in without
leave, but to all impleaders under the rule, is emphasized in the
next-to-last sentence of the subdivision, added by amendment.
In dispensing with leave of court for an impleader filed not
later than 10 days after serving the answer, but retaining the
leave requirement for impleaders sought to be effected thereafter,
the amended subdivision takes a moderate position on the lines
urged by some commentators, see Note, 43 Minn.L.Rev. 115 (1958);
cf. Pa.R.Civ.P. 2252-53 (60 days after service on the defendant);
Minn.R.Civ.P. 14.01 (45 days). Other commentators would dispense
with the requirement of leave regardless of the time when impleader
is effected, and would rely on subsequent action by the court to
dismiss the impleader if it would unduly delay or complicate the
litigation or would be otherwise objectionable. See 1A Barron &
Holtzoff, Federal Practice & Procedure 649-50 (Wright ed. 1960);
Comment, 58 Colum.L.Rev. 532, 546 (1958); cf. N.Y.Civ.Prac. Act
Sec. 193-a; Me.R.Civ.P. 14. The amended subdivision preserves the
value of a preliminary screening, through the leave procedure, of
impleaders attempted after the 10-day period.
The amendment applies also when an impleader is initiated by a
third-party defendant against a person who may be liable to him, as
provided in the last sentence of the subdivision.
NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT
Rule 14 was modeled on Admiralty Rule 56. An important feature of
Admiralty Rule 56 was that it allowed impleader not only of a
person who might be liable to the defendant by way of remedy over,
but also of any person who might be liable to the plaintiff. The
importance of this provision was that the defendant was entitled to
insist that the plaintiff proceed to judgment against the
third-party defendant. In certain cases this was a valuable
implementation of a substantive right. For example, in a case of
ship collision where a finding of mutual fault is possible, one
ship- owner, if sued alone, faces the prospect of an absolute
judgment for the full amount of the damage suffered by an innocent
third party; but if he can implead the owner of the other vessel,
and if mutual fault is found, the judgment against the original
defendant will be in the first instance only for a moiety of the
damages; liability for the remainder will be conditioned on the
plaintiff's inability to collect from the third-party defendant.
This feature was originally incorporated in Rule 14, but was
eliminated by the amendment of 1946, so that under the amended rule
a third party could not be impleaded on the basis that he might be
liable to the plaintiff. One of the reasons for the amendment was
that the Civil Rule, unlike the Admiralty Rule, did not require the
plaintiff to go to judgment against the third-party defendant.
Another reason was that where jurisdiction depended on diversity of
citizenship the impleader of an adversary having the same
citizenship as the plaintiff was not considered possible.
Retention of the admiralty practice in those cases that will be
counterparts of a suit in admiralty is clearly desirable.
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendments are technical. No substantive change is intended.
COMMITTEE NOTES ON RULES - 2000 AMENDMENT
Subdivisions (a) and (c) are amended to reflect revisions in
Supplemental Rule C(6).
GAP Report. Rule B(1)(a) was modified by moving "in an in
personam action" out of paragraph (a) and into the first line of
subdivision (1). This change makes it clear that all paragraphs of
subdivision (1) apply when attachment is sought in an in personam
action. Rule B(1)(d) was modified by changing the requirement that
the clerk deliver the summons and process to the person or
organization authorized to serve it. The new form requires only
that the summons and process be delivered, not that the clerk
effect the delivery. This change conforms to present practice in
some districts and will facilitate rapid service. It matches the
spirit of Civil Rule 4(b), which directs the clerk to issue the
summons "to the plaintiff for service on the defendant." A parallel
change is made in Rule C(3)(b).
-End-
-CITE-
28 USC APPENDIX Rule 15 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
III. PLEADINGS AND MOTIONS
-HEAD-
Rule 15. Amended and Supplemental Pleadings
-STATUTE-
(a) Amendments. A party may amend the party's pleading once as a
matter of course at any time before a responsive pleading is served
or, if the pleading is one to which no responsive pleading is
permitted and the action has not been placed upon the trial
calendar, the party may so amend it at any time within 20 days
after it is served. Otherwise a party may amend the party's
pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so
requires. A party shall plead in response to an amended pleading
within the time remaining for response to the original pleading or
within 10 days after service of the amended pleading, whichever
period may be the longer, unless the court otherwise orders.
(b) Amendments To Conform to the Evidence. When issues not raised
by the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had been
raised in the pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to raise
these issues may be made upon motion of any party at any time, even
after judgment; but failure so to amend does not affect the result
of the trial of these issues. If evidence is objected to at the
trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended and
shall do so freely when the presentation of the merits of the
action will be subserved thereby and the objecting party fails to
satisfy the court that the admission of such evidence would
prejudice the party in maintaining the party's action or defense
upon the merits. The court may grant a continuance to enable the
objecting party to meet such evidence.
(c) Relation Back of Amendments. An amendment of a pleading
relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides the
statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose
out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party
against whom a claim is asserted if the foregoing provision (2)
is satisfied and, within the period provided by Rule 4(m) for
service of the summons and complaint, the party to be brought in
by amendment (A) has received such notice of the institution of
the action that the party will not be prejudiced in maintaining a
defense on the merits, and (B) knew or should have known that,
but for a mistake concerning the identity of the proper party,
the action would have been brought against the party.
The delivery or mailing of process to the United States
Attorney, or United States Attorney's designee, or the Attorney
General of the United States, or an agency or officer who would
have been a proper defendant if named, satisfies the requirement
of subparagraphs (A) and (B) of this paragraph (3) with respect
to the United States or any agency or officer thereof to be
brought into the action as a defendant.
(d) Supplemental Pleadings. Upon motion of a party the court may,
upon reasonable notice and upon such terms as are just, permit the
party to serve a supplemental pleading setting forth transactions
or occurrences or events which have happened since the date of the
pleading sought to be supplemented. Permission may be granted even
though the original pleading is defective in its statement of a
claim for relief or defense. If the court deems it advisable that
the adverse party plead to the supplemental pleading, it shall so
order, specifying the time therefor.
-SOURCE-
(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff.
July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff.
Dec. 1, 1991; Pub. L. 102-198, Sec. 11(a), Dec. 9, 1991, 105 Stat.
1626; Apr. 22, 1993, eff. Dec. 1, 1993.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
See generally for the present federal practice, [former] Equity
Rules 19 (Amendments Generally), 28 (Amendment of Bill as of
Course), 32 (Answer to Amended Bill), 34 (Supplemental Pleading),
and 35 (Bills of Revivor and Supplemental Bills - Form); U.S.C.,
Title 28, Secs. 399 [now 1653] (Amendments to show diverse
citizenship) and [former] 777 (Defects of Form; amendments). See
English Rules Under the Judicature Act (The Annual Practice, 1937)
O. 28, r.r. 1-13; O. 20, r. 4; O. 24, r.r. 1-3.
Note to Subdivision (a). The right to serve an amended pleading
once as of course is common. 4 Mont.Rev.Codes Ann. (1935) Sec.
9186; 1 Ore.Code Ann. (1930) Sec. 1-904; 1 S.C.Code (Michie, 1932)
Sec. 493; English Rules Under the Judicature Act (The Annual
Practice, 1937) O. 28, r. 2. Provision for amendment of pleading
before trial, by leave of court, is in almost every code. If there
is no statute the power of the court to grant leave is said to be
inherent. Clark, Code Pleading, (1928) pp. 498, 509.
Note to Subdivision (b). Compare [former] Equity Rule 19
(Amendments Generally) and code provisions which allow an amendment
"at any time in furtherance of justice," (e. g., Ark.Civ.Code
(Crawford, 1934) Sec. 155) and which allow an amendment of
pleadings to conform to the evidence, where the adverse party has
not been misled and prejudiced (e.g., N.M.Stat.Ann. (Courtright,
1929) Secs. 105-601, 105-602).
Note to Subdivision (c). "Relation back" is a well recognized
doctrine of recent and now more frequent application. Compare
Ala.Code Ann. (Michie, 1928) Sec. 9513; Ill.Rev.Stat. (1937) ch.
110, Sec. 170(2); 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec.
308-3(4). See U.S.C., Title 28, Sec. 399 [now 1653] (Amendments to
show diverse citizenship) for a provision for "relation back."
Note to Subdivision (d). This is an adaptation of Equity Rule 34
(Supplemental Pleading).
NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT
Rule 15(d) is intended to give the court broad discretion in
allowing a supplemental pleading. However, some cases, opposed by
other cases and criticized by the commentators, have taken the
rigid and formalistic view that where the original complaint fails
to state a claim upon which relief can be granted, leave to serve a
supplemental complaint must be denied. See Bonner v. Elizabeth
Arden, Inc., 177 F.2d 703 (2d Cir. 1949); Bowles v. Senderowitz, 65
F.Supp. 548 (E.D.Pa.), rev'd on other grounds, 158 F.2d 435 (3d
Cir. 1946), cert. denied, Senderowitz v. Fleming, 330 U.S. 848, 67
S.Ct. 1091, 91 L.Ed. 1292 (1947); cf. LaSalle Nat. Bank v. 222 East
Chestnut St. Corp., 267 F.2d 247 (7th Cir.), cert. denied, 361 U.S.
836, 80 S.Ct. 88, 4 L.Ed.2d 77 (1959). But see Camilla Cotton Oil
Co. v. Spencer Kellogg & Sons, 257 F.2d 162 (5th Cir. 1958); Genuth
v. National Biscuit Co., 81 F.Supp. 213 (S.D.N.Y. 1948), app.
dism., 177 F.2d 962 (2d Cir. 1949); 3 Moore's Federal Practice
¶ 15.01 [5] (Supp. 1960); 1A Barron & Holtzoff, Federal
Practice & Procedure 820-21 (Wright ed. 1960). Thus plaintiffs have
sometimes been needlessly remitted to the difficulties of
commencing a new action even though events occurring after the
commencement of the original action have made clear the right to
relief.
Under the amendment the court has discretion to permit a
supplemental pleading despite the fact that the original pleading
is defective. As in other situations where a supplemental pleading
is offered, the court is to determine in the light of the
particular circumstances whether filing should be permitted, and if
so, upon what terms. The amendment does not attempt to deal with
such questions as the relation of the statute of limitations to
supplemental pleadings, the operation of the doctrine of laches, or
the availability of other defenses. All these questions are for
decision in accordance with the principles applicable to
supplemental pleadings generally. Cf. Blau v. Lamb, 191 F.Supp. 906
(S.D.N.Y. 1961); Lendonsol Amusement Corp. v. B. & Q. Assoc., Inc.,
23 F.R.Serv. 15d. 3, Case 1 (D.Mass. 1957).
NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT
Rule 15(c) is amplified to state more clearly when an amendment
of a pleading changing the party against whom a claim is asserted
(including an amendment to correct a misnomer or misdescription of
a defendant) shall "relate back" to the date of the original
pleading.
The problem has arisen most acutely in certain actions by private
parties against officers or agencies of the United States. Thus an
individual denied social security benefits by the Secretary of
Health, Education, and Welfare may secure review of the decision by
bringing a civil action against that officer within sixty days. 42
U.S.C. Sec. 405(g) (Supp. III, 1962). In several recent cases the
claimants instituted timely action but mistakenly named as
defendant the United States, the Department of HEW, the "Federal
Security Administration" (a nonexistent agency), and a Secretary
who had retired from the office nineteen days before. Discovering
their mistakes, the claimants moved to amend their complaints to
name the proper defendant; by this time the statutory sixty-day
period had expired. The motions were denied on the ground that the
amendment "would amount to the commencement of a new proceeding and
would not relate back in time so as to avoid the statutory
provision * * * that suit be brought within sixty days * * *" Cohn
v. Federal Security Adm., 199 F.Supp. 884, 885 (W.D.N.Y. 1961); see
also Cunningham v. United States, 199 F.Supp. 541 (W.D.Mo. 1958);
Hall v. Department of HEW, 199 F.Supp. 833 (S.D.Tex. 1960);
Sandridge v. Folsom, Secretary of HEW, 200 F.Supp. 25 (M.D.Tenn.
1959). [The Secretary of Health, Education, and Welfare has
approved certain ameliorative regulations under 42 U.S.C. Sec.
405(g). See 29 Fed.Reg. 8209 (June 30, 1964); Jacoby, The Effect of
Recent Changes in the Law of "Nonstatutory" Judicial Review, 53
Geo.L.J. 19, 42-43 (1964); see also Simmons v. United States Dept.
HEW, 328 F.2d 86 (3d Cir. 1964).]
Analysis in terms of "new proceeding" is traceable to Davis v. L.
L. Cohen & Co., 268 U.S. 638 (1925), and Mellon v. Arkansas Land &
Lumber Co., 275 U.S. 460 (1928), but those cases antedate the
adoption of the Rules which import different criteria for
determining when an amendment is to "relate back". As lower courts
have continued to rely on the Davis and Mellon cases despite the
contrary intent of the Rules, clarification of Rule 15(c) is
considered advisable.
Relation back is intimately connected with the policy of the
statute of limitations. The policy of the statute limiting the time
for suit against the Secretary of HEW would not have been offended
by allowing relation back in the situations described above. For
the government was put on notice of the claim within the stated
period - in the particular instances, by means of the initial
delivery of process to a responsible government official (see Rule
4(d)(4) and (5). In these circumstances, characterization of the
amendment as a new proceeding is not responsive to the realty, but
is merely question-begging; and to deny relation back is to defeat
unjustly the claimant's opportunity to prove his case. See the full
discussion by Byse, Suing the "Wrong" Defendant in Judicial Review
of Federal Administrative Action: Proposals for Reform, 77
Harv.L.Rev. 40 (1963); see also Ill.Civ.P.Act Sec. 46(4).
Much the same question arises in other types of actions against
the government (see Byse, supra, at 45 n. 15). In actions between
private parties, the problem of relation back of amendments
changing defendants has generally been better handled by the
courts, but incorrect criteria have sometimes been applied, leading
sporadically to doubtful results. See 1A Barron & Holtzoff, Federal
Practice & Procedure Sec. 451 (Wright ed. 1960); 1 id. Sec. 186
(1960); 2 id. Sec. 543 (1961); 3 Moore's Federal Practice, par.
15.15 (Cum.Supp. 1962); Annot., Change in Party After Statute of
Limitations Has Run, 8 A.L.R.2d 6 (1949). Rule 15(c) has been
amplified to provide a general solution. An amendment changing the
party against whom a claim is asserted relates back if the
amendment satisfies the usual condition of Rule 15(c) of "arising
out of the conduct * * * set forth * * * in the original pleading,"
and if, within the applicable limitations period, the party brought
in by amendment, first, received such notice of the institution of
the action - the notice need not be formal - that he would not be
prejudiced in defending the action, and, second, knew or should
have known that the action would have been brought against him
initially had there not been a mistake concerning the identity of
the proper party. Revised Rule 15(c) goes on to provide
specifically in the government cases that the first and second
requirements are satisfied when the government has been notified in
the manner there described (see Rule 4(d)(4) and (5). As applied to
the government cases, revised Rule 15(c) further advances the
objectives of the 1961 amendment of Rule 25(d) (substitution of
public officers).
The relation back of amendments changing plaintiffs is not
expressly treated in revised Rule 15(c) since the problem is
generally easier. Again the chief consideration of policy is that
of the statute of limitations, and the attitude taken in revised
Rule 15(c) toward change of defendants extends by analogy to
amendments changing plaintiffs. Also relevant is the amendment of
Rule 17(a) (real party in interest). To avoid forfeitures of just
claims, revised Rule 17(a) would provide that no action shall be
dismissed on the ground that it is not prosecuted in the name of
the real party in interest until a reasonable time has been allowed
for correction of the defect in the manner there stated.
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendments are technical. No substantive change is intended.
NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT
The rule has been revised to prevent parties against whom claims
are made from taking unjust advantage of otherwise inconsequential
pleading errors to sustain a limitations defense.
Paragraph (c)(1). This provision is new. It is intended to make
it clear that the rule does not apply to preclude any relation back
that may be permitted under the applicable limitations law.
Generally, the applicable limitations law will be state law. If
federal jurisdiction is based on the citizenship of the parties,
the primary reference is the law of the state in which the district
court sits. Walker v. Armco Steel Corp., 446 U.S. 740 (1980). If
federal jurisdiction is based on a federal question, the reference
may be to the law of the state governing relations between the
parties. E.g., Board of Regents v. Tomanio, 446 U.S. 478 (1980). In
some circumstances, the controlling limitations law may be federal
law. E.g., West v. Conrail, Inc., 107 S.Ct. 1538 (1987). Cf.
Burlington Northern R. Co. v. Woods, 480 U.S. 1 (1987); Stewart
Organization v. Ricoh, 108 S.Ct. 2239 (1988). Whatever may be the
controlling body of limitations law, if that law affords a more
forgiving principle of relation back than the one provided in this
rule, it should be available to save the claim. Accord, Marshall v.
Mulrenin, 508 F.2d 39 (1st cir. 1974). If Schiavone v. Fortune, 106
S.Ct. 2379 (1986) implies the contrary, this paragraph is intended
to make a material change in the rule.
Paragraph (c)(3). This paragraph has been revised to change the
result in Schiavone v. Fortune, supra, with respect to the problem
of a misnamed defendant. An intended defendant who is notified of
an action within the period allowed by Rule 4(m) for service of a
summons and complaint may not under the revised rule defeat the
action on account of a defect in the pleading with respect to the
defendant's name, provided that the requirements of clauses (A) and
(B) have been met. If the notice requirement is met within the Rule
4(m) period, a complaint may be amended at any time to correct a
formal defect such as a misnomer or misidentification. On the basis
of the text of the former rule, the Court reached a result in
Schiavone v. Fortune that was inconsistent with the liberal
pleading practices secured by Rule 8. See Bauer, Schiavone: An
Un-Fortune-ate Illustration of the Supreme Court's Role as
Interpreter of the Federal Rules of Civil Procedure, 63 NOTRE DAME
L. REV. 720 (1988); Brussack, Outrageous Fortune: The Case for
Amending Rule 15(c) Again, 61 S. CAL. L. REV. 671 (1988); Lewis,
The Excessive History of Federal Rule 15(c) and Its Lessons for
Civil Rules Revision, 86 MICH. L. REV. 1507 (1987).
In allowing a name-correcting amendment within the time allowed
by Rule 4(m), this rule allows not only the 120 days specified in
that rule, but also any additional time resulting from any
extension ordered by the court pursuant to that rule, as may be
granted, for example, if the defendant is a fugitive from service
of the summons.
This revision, together with the revision of Rule 4(i) with
respect to the failure of a plaintiff in an action against the
United States to effect timely service on all the appropriate
officials, is intended to produce results contrary to those reached
in Gardner v. Gartman, 880 F.2d 797 (4th cir. 1989), Rys v. U.S.
Postal Service, 886 F.2d 443 (1st cir. 1989), Martin's Food &
Liquor, Inc. v. U.S. Dept. of Agriculture, 14 F.R.S.3d 86 (N.D.
Ill. 1988). But cf. Montgomery v. United States Postal Service, 867
F.2d 900 (5th cir. 1989), Warren v. Department of the Army, 867
F.2d 1156 (8th cir. 1989); Miles v. Department of the Army, 881
F.2d 777 (9th cir. 1989), Barsten v. Department of the Interior,
896 F.2d 422 (9th cir. 1990); Brown v. Georgia Dept. of Revenue,
881 F.2d 1018 (11th cir. 1989).
CONGRESSIONAL MODIFICATION OF PROPOSED 1991 AMENDMENT
Section 11(a) of Pub. L. 102-198 [set out as a note under section
2074 of this title] provided that Rule 15(c)(3) of the Federal
Rules of Civil Procedure as transmitted to Congress by the Supreme
Court to become effective on Dec. 1, 1991, is amended. See 1991
Amendment note below.
NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT
The amendment conforms the cross reference to Rule 4 to the
revision of that rule.
AMENDMENT BY PUBLIC LAW
1991 - Subd. (c)(3). Pub. L. 102-198 substituted "Rule 4(j)" for
"Rule 4(m)".
-End-
-CITE-
28 USC APPENDIX Rule 16 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
III. PLEADINGS AND MOTIONS
-HEAD-
Rule 16. Pretrial Conferences; Scheduling; Management
-STATUTE-
(a) Pretrial Conferences; Objectives. In any action, the court
may in its discretion direct the attorneys for the parties and any
unrepresented parties to appear before it for a conference or
conferences before trial for such purposes as
(1) expediting the disposition of the action;
(2) establishing early and continuing control so that the case
will not be protracted because of lack of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more thorough
preparation, and;
(5) facilitating the settlement of the case.
(b) Scheduling and Planning. Except in categories of actions
exempted by district court rule as inappropriate, the district
judge, or a magistrate judge when authorized by district court
rule, shall, after receiving the report from the parties under Rule
26(f) or after consulting with the attorneys for the parties and
any unrepresented parties by a scheduling conference, telephone,
mail, or other suitable means, enter a scheduling order that limits
the time
(1) to join other parties and to amend the pleadings;
(2) to file motions; and
(3) to complete discovery.
The scheduling order also may include
(4) modifications of the times for disclosures under Rules
26(a) and 26(e)(1) and of the extent of discovery to be
permitted;
(5) the date or dates for conferences before trial, a final
pretrial conference, and trial; and
(6) any other matters appropriate in the circumstances of the
case.
The order shall issue as soon as practicable but in any event
within 90 days after the appearance of a defendant and within 120
days after the complaint has been served on a defendant. A schedule
shall not be modified except upon a showing of good cause and by
leave of the district judge or, when authorized by local rule, by a
magistrate judge.
(c) Subjects for Consideration at Pretrial Conferences. At any
conference under this rule consideration may be given, and the
court may take appropriate action, with respect to
(1) the formulation and simplification of the issues, including
the elimination of frivolous claims or defenses;
(2) the necessity or desirability of amendments to the
pleadings;
(3) the possibility of obtaining admissions of fact and of
documents which will avoid unnecessary proof, stipulations
regarding the authenticity of documents, and advance rulings from
the court on the admissibility of evidence;
(4) the avoidance of unnecessary proof and of cumulative
evidence, and limitations or restrictions on the use of testimony
under Rule 702 of the Federal Rules of Evidence;
(5) the appropriateness and timing of summary adjudication
under Rule 56;
(6) the control and scheduling of discovery, including orders
affecting disclosures and discovery pursuant to Rule 26 and Rules
29 through 37;
(7) the identification of witnesses and documents, the need and
schedule for filing and exchanging pretrial briefs, and the date
or dates for further conferences and for trial;
(8) the advisability of referring matters to a magistrate judge
or master;
(9) settlement and the use of special procedures to assist in
resolving the dispute when authorized by statute or local rule;
(10) the form and substance of the pretrial order;
(11) the disposition of pending motions;
(12) the need for adopting special procedures for managing
potentially difficult or protracted actions that may involve
complex issues, multiple parties, difficult legal questions, or
unusual proof problems;
(13) an order for a separate trial pursuant to Rule 42(b) with
respect to a claim, counterclaim, cross-claim, or third-party
claim, or with respect to any particular issue in the case;
(14) an order directing a party or parties to present evidence
early in the trial with respect to a manageable issue that could,
on the evidence, be the basis for a judgment as a matter of law
under Rule 50(a) or a judgment on partial findings under Rule
52(c);
(15) an order establishing a reasonable limit on the time
allowed for presenting evidence; and
(16) such other matters as may facilitate the just, speedy, and
inexpensive disposition of the action.
At least one of the attorneys for each party participating in any
conference before trial shall have authority to enter into
stipulations and to make admissions regarding all matters that the
participants may reasonably anticipate may be discussed. If
appropriate, the court may require that a party or its
representative be present or reasonably available by telephone in
order to consider possible settlement of the dispute.
(d) Final Pretrial Conference. Any final pretrial conference
shall be held as close to the time of trial as reasonable under the
circumstances. The participants at any such conference shall
formulate a plan for trial, including a program for facilitating
the admission of evidence. The conference shall be attended by at
least one of the attorneys who will conduct the trial for each of
the parties and by any unrepresented parties.
(e) Pretrial Orders. After any conference held pursuant to this
rule, an order shall be entered reciting the action taken. This
order shall control the subsequent course of the action unless
modified by a subsequent order. The order following a final
pretrial conference shall be modified only to prevent manifest
injustice.
(f) Sanctions. If a party or party's attorney fails to obey a
scheduling or pretrial order, or if no appearance is made on behalf
of a party at a scheduling or pretrial conference, or if a party or
party's attorney is substantially unprepared to participate in the
conference, or if a party or party's attorney fails to participate
in good faith, the judge, upon motion or the judge's own
initiative, may make such orders with regard thereto as are just,
and among others any of the orders provided in Rule 37(b)(2)(B),
(C), (D). In lieu of or in addition to any other sanction, the
judge shall require the party or the attorney representing the
party or both to pay the reasonable expenses incurred because of
any noncompliance with this rule, including attorney's fees, unless
the judge finds that the noncompliance was substantially justified
or that other circumstances make an award of expenses unjust.
-SOURCE-
(As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
1. Similar rules of pre-trial procedure are now in force in
Boston, Cleveland, Detroit, and Los Angeles, and a rule
substantially like this one has been proposed for the urban centers
of New York state. For a discussion of the successful operation of
pre-trial procedure in relieving the congested condition of trial
calendars of the courts in such cities and for the proposed New
York plan, see A Proposal for Minimizing Calendar Delay in Jury
Cases (Dec. 1936 - published by The New York Law Society);
Pre-Trial Procedure and Administration, Third Annual Report of the
Judicial Council of the State of New York (1937), pp. 207-243;
Report of the Commission on the Administration of Justice in New
York State (1934), pp. (288)-(290). See also Pre-Trial Procedure in
the Wayne Circuit Court, Detroit, Michigan, Sixth Annual Report of
the Judicial Council of Michigan (1936), pp. 63-75; and Sunderland,
The Theory and Practice of Pre-Trial Procedure (Dec. 1937) 36
Mich.L.Rev. 215-226, 21 J.Am.Jud.Soc. 125. Compare the English
procedure known as the "summons for directions," English Rules
Under the Judicature Act (The Annual Practice, 1937) O. 38a; and a
similar procedure in New Jersey, N.J.Comp.Stat. (2 Cum.Supp.
1911-1924); N.J. Supreme Court Rules, 2 N.J.Misc.Rep. (1924) 1230,
Rules 94, 92, 93, 95 (the last three as amended 1933, 11
N.J.Misc.Rep. (1933) 955).
2. Compare the similar procedure under Rule 56(d) (Summary
Judgment - Case Not Fully Adjudicated on Motion). Rule 12(g)
(Consolidation of Motions), by requiring to some extent the
consolidation of motions dealing with matters preliminary to trial,
is a step in the same direction. In connection with clause (5) of
this rule, see Rules 53(b) (Masters; Reference) and 53(e)(3)
(Master's Report; In Jury Actions).
NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT
INTRODUCTION
Rule 16 has not been amended since the Federal Rules were
promulgated in 1938. In many respects, the rule has been a success.
For example, there is evidence that pretrial conferences may
improve the quality of justice rendered in the federal courts by
sharpening the preparation and presentation of cases, tending to
eliminate trial surprise, and improving, as well as facilitating,
the settlement process. See 6 Wright & Miller, Federal Practice and
Procedure: Civil Sec. 1522 (1971). However, in other respects
particularly with regard to case management, the rule has not
always been as helpful as it might have been. Thus there has been a
widespread feeling that amendment is necessary to encourage
pretrial management that meets the needs of modern litigation. See
Report of the National Commission for the Review of Antitrust Laws
and Procedures (1979).
Major criticism of Rule 16 has centered on the fact that its
application can result in over-regulation of some cases and
under-regulation of others. In simple, run-of-the-mill cases,
attorneys have found pretrial requirements burdensome. It is
claimed that over-administration leads to a series of mini-trials
that result in a waste of an attorney's time and needless expense
to a client. Pollack, Pretrial Procedures More Effectively Handled,
65 F.R.D. 475 (1974). This is especially likely to be true when
pretrial proceedings occur long before trial. At the other end of
the spectrum, the discretionary character of Rule 16 and its
orientation toward a single conference late in the pretrial process
has led to under-administration of complex or protracted cases.
Without judicial guidance beginning shortly after institution,
these cases often become mired in discovery.
Four sources of criticism of pretrial have been identified.
First, conferences often are seen as a mere exchange of legalistic
contentions without any real analysis of the particular case.
Second, the result frequently is nothing but a formal agreement on
minutiae. Third, the conferences are seen as unnecessary and
time-consuming in cases that will be settled before trial. Fourth,
the meetings can be ceremonial and ritualistic, having little
effect on the trial and being of minimal value, particularly when
the attorneys attending the sessions are not the ones who will try
the case or lack authority to enter into binding stipulations. See
generally McCargo v. Hedrick, 545 F.2d 393 (4th Cir. 1976);
Pollack, Pretrial Procedures More Effectively Handled, 65 F.R.D.
475 (1974); Rosenberg, The Pretrial Conference and Effective
Justice 45 (1964).
There also have been difficulties with the pretrial orders that
issue following Rule 16 conferences. When an order is entered far
in advance of trial, some issues may not be properly formulated.
Counsel naturally are cautious and often try to preserve as many
options as possible. If the judge who tries the case did not
conduct the conference, he could find it difficult to determine
exactly what was agreed to at the conference. But any insistence on
a detailed order may be too burdensome, depending on the nature or
posture of the case.
Given the significant changes in federal civil litigation since
1938 that are not reflected in Rule 16, it has been extensively
rewritten and expanded to meet the challenges of modern litigation.
Empirical studies reveal that when a trial judge intervenes
personally at an early stage to assume judicial control over a case
and to schedule dates for completion by the parties of the
principal pretrial steps, the case is disposed of by settlement or
trial more efficiently and with less cost and delay than when the
parties are left to their own devices. Flanders, Case Management
and Court Management in United States District Courts 17, Federal
Judicial Center (1977). Thus, the rule mandates a pretrial
scheduling order. However, although scheduling and pretrial
conferences are encouraged in appropriate cases, they are not
mandated.
DISCUSSION
Subdivision (a); Pretrial Conferences; Objectives. The amended
rule makes scheduling and case management an express goal of
pretrial procedure. This is done in Rule 16(a) by shifting the
emphasis away from a conference focused solely on the trial and
toward a process of judicial management that embraces the entire
pretrial phase, especially motions and discovery. In addition, the
amendment explicitly recognizes some of the objectives of pretrial
conferences and the powers that many courts already have assumed.
Rule 16 thus will be a more accurate reflection of actual practice.
Subdivision (b); Scheduling and Planning. The most significant
change in Rule 16 is the mandatory scheduling order described in
Rule 16(b), which is based in part on Wisconsin Civil Procedure
Rule 802.10. The idea of scheduling orders is not new. It has been
used by many federal courts. See, e.g., Southern District of
Indiana, Local Rule 19.
Although a mandatory scheduling order encourages the court to
become involved in case management early in the litigation, it
represents a degree of judicial involvement that is not warranted
in many cases. Thus, subdivision (b) permits each district court to
promulgate a local rule under Rule 83 exempting certain categories
of cases in which the burdens of scheduling orders exceed the
administrative efficiencies that would be gained. See Eastern
District of Virginia, Local Rule 12(1). Logical candidates for this
treatment include social security disability matters, habeas corpus
petitions, forfeitures, and reviews of certain administrative
actions.
A scheduling conference may be requested either by the judge, a
magistrate when authorized by district court rule, or a party
within 120 days after the summons and complaint are filed. If a
scheduling conference is not arranged within that time and the case
is not exempted by local rule, a scheduling order must be issued
under Rule 16(b), after some communication with the parties, which
may be by telephone or mail rather than in person. The use of the
term "judge" in subdivision (b) reflects the Advisory Committee's
judgment that is it preferable that this task should be handled by
a district judge rather than a magistrate, except when the
magistrate is acting under 28 U.S.C. Sec. 636(c). While personal
supervision by the trial judge is preferred, the rule, in
recognition of the impracticality or difficulty of complying with
such a requirement in some districts, authorizes a district by
local rule to delegate the duties to a magistrate. In order to
formulate a practicable scheduling order, the judge, or a
magistrate when authorized by district court rule, and attorneys
are required to develop a timetable for the matters listed in Rule
16(b)(1)-(3). As indicated in Rule 16(b)(4)-(5), the order may also
deal with a wide range of other matters. The rule is phrased
permissively as to clauses (4) and (5), however, because scheduling
these items at an early point may not be feasible or appropriate.
Even though subdivision (b) relates only to scheduling, there is no
reason why some of the procedural matters listed in Rule 16(c)
cannot be addressed at the same time, at least when a scheduling
conference is held.
Item (1) assures that at some point both the parties and the
pleadings will be fixed, by setting a time within which joinder of
parties shall be completed and the pleadings amended.
Item (2) requires setting time limits for interposing various
motions that otherwise might be used as stalling techniques.
Item (3) deals with the problem of procrastination and delay by
attorneys in a context in which scheduling is especially important
- discovery. Scheduling the completion of discovery can serve some
of the same functions as the conference described in Rule 26(f).
Item (4) refers to setting dates for conferences and for trial.
Scheduling multiple pretrial conferences may well be desirable if
the case is complex and the court believes that a more elaborate
pretrial structure, such as that described in the Manual for
Complex Litigation, should be employed. On the other hand, only one
pretrial conference may be necessary in an uncomplicated case.
As long as the case is not exempted by local rule, the court must
issue a written scheduling order even if no scheduling conference
is called. The order, like pretrial orders under the former rule
and those under new Rule 16(c), normally will "control the
subsequent course of the action." See Rule 16(e). After
consultation with the attorneys for the parties and any
unrepresented parties - a formal motion is not necessary - the
court may modify the schedule on a showing of good cause if it
cannot reasonably be met despite the diligence of the party seeking
the extension. Since the scheduling order is entered early in the
litigation, this standard seems more appropriate than a "manifest
injustice" or "substantial hardship" test. Otherwise, a fear that
extensions will not be granted may encourage counsel to request the
longest possible periods for completing pleading, joinder, and
discovery. Moreover, changes in the court's calendar sometimes will
oblige the judge or magistrate when authorized by district court
rule to modify the scheduling order.
The district courts undoubtedly will develop several prototype
scheduling orders for different types of cases. In addition, when
no formal conference is held, the court may obtain scheduling
information by telephone, mail, or otherwise. In many instances
this will result in a scheduling order better suited to the
individual case than a standard order, without taking the time that
would be required by a formal conference.
Rule 16(b) assures that the judge will take some early control
over the litigation, even when its character does not warrant
holding a scheduling conference. Despite the fact that the process
of preparing a scheduling order does not always bring the attorneys
and judge together, the fixing of time limits serves
to stimulate litigants to narrow the areas of inquiry and
advocacy to those they believe are truly relevant and material.
Time limits not only compress the amount of time for litigation,
they should also reduce the amount of resources invested in
litigation. Litigants are forced to establish discovery
priorities and thus to do the most important work first.
Report of the National Commission for the Review of Antitrust Laws
and Procedures 28 (1979).
Thus, except in exempted cases, the judge or a magistrate when
authorized by district court rule will have taken some action in
every case within 120 days after the complaint is filed that
notifies the attorneys that the case will be moving toward trial.
Subdivision (b) is reenforced by subdivision (f), which makes it
clear that the sanctions for violating a scheduling order are the
same as those for violating a pretrial order.
Subdivision (c); Subjects to be Discussed at Pretrial
Conferences. This subdivision expands upon the list of things that
may be discussed at a pretrial conference that appeared in original
Rule 16. The intention is to encourage better planning and
management of litigation. Increased judicial control during the
pretrial process accelerates the processing and termination of
cases. Flanders, Case Management and Court Management in United
States District Courts, Federal Judicial Center (1977). See also
Report of the National Commission for the Review of Antitrust Laws
and Procedures (1979).
The reference in Rule 16(c)(1) to "formulation" is intended to
clarify and confirm the court's power to identify the litigable
issues. It has been added in the hope of promoting efficiency and
conserving judicial resources by identifying the real issues prior
to trial, thereby saving time and expense for everyone. See
generally Meadow Gold Prods. Co. v. Wright, 278 F.2d 867 (D.C. Cir.
1960). The notion is emphasized by expressly authorizing the
elimination of frivolous claims or defenses at a pretrial
conference. There is no reason to require that this await a formal
motion for summary judgment. Nor is there any reason for the court
to wait for the parties to initiate the process called for in Rule
16(c)(1).
The timing of any attempt at issue formulation is a matter of
judicial discretion. In relatively simple cases it may not be
necessary or may take the form of a stipulation between counsel or
a request by the court that counsel work together to draft a
proposed order.
Counsel bear a substantial responsibility for assisting the court
in identifying the factual issues worthy of trial. If counsel fail
to identify an issue for the court, the right to have the issue
tried is waived. Although an order specifying the issues is
intended to be binding, it may be amended at trial to avoid
manifest injustice. See Rule 16(e). However, the rule's
effectiveness depends on the court employing its discretion
sparingly.
Clause (6) acknowledges the widespread availability and use of
magistrates. The corresponding provision in the original rule
referred only to masters and limited the function of the reference
to the making of "findings to be used as evidence" in a case to be
tried to a jury. The new text is not limited and broadens the
potential use of a magistrate to that permitted by the Magistrate's
Act.
Clause (7) explicitly recognizes that it has become commonplace
to discuss settlement at pretrial conferences. Since it obviously
eases crowded court dockets and results in savings to the litigants
and the judicial system, settlement should be facilitated at as
early a stage of the litigation as possible. Although it is not the
purpose of Rule 16(b)(7) to impose settlement negotiations on
unwilling litigants, it is believed that providing a neutral forum
for discussing the subject might foster it. See Moore's Federal
Practice ¶ 16.17; 6 Wright & Miller, Federal Practice and
Procedure: Civil Sec. 1522 (1971). For instance, a judge to whom a
case has been assigned may arrange, on his own motion or a at a
party's request, to have settlement conferences handled by another
member of the court or by a magistrate. The rule does not make
settlement conferences mandatory because they would be a waste of
time in many cases. See Flanders, Case Management and Court
Management in the United States District Courts, 39, Federal
Judicial Center (1977). Requests for a conference from a party
indicating a willingness to talk settlement normally should be
honored, unless thought to be frivolous or dilatory.
A settlement conference is appropriate at any time. It may be
held in conjunction with a pretrial or discovery conference,
although various objectives of pretrial management, such as moving
the case toward trial, may not always be compatible with settlement
negotiations, and thus a separate settlement conference may be
desirable. See 6 Wright & Miller, Federal Practice and Procedure:
Civil Sec. 1522, at p. 751 (1971).
In addition to settlement, Rule 16(c)(7) refers to exploring the
use of procedures other than litigation to resolve the dispute.
This includes urging the litigants to employ adjudicatory
techniques outside the courthouse. See, for example, the experiment
described in Green, Marks & Olson, Settling Large Case Litigation:
An Alternative Approach, 11 Loyola of L.A. L.Rev. 493 (1978).
Rule 16(c)(10) authorizes the use of special pretrial procedures
to expedite the adjudication of potentially difficult or protracted
cases. Some district courts obviously have done so for many years.
See Rubin, The Managed Calendar: Some Pragmatic Suggestions About
Achieving the Just, Speedy and Inexpensive Determination of Civil
Cases in Federal Courts, 4 Just. Sys. J. 135 (1976). Clause 10
provides an explicit authorization for such procedures and
encourages their use. No particular techniques have been described;
the Committee felt that flexibility and experience are the keys to
efficient management of complex cases. Extensive guidance is
offered in such documents as the Manual for Complex Litigation.
The rule simply identifies characteristics that make a case a
strong candidate for special treatment. The four mentioned are
illustrative, not exhaustive, and overlap to some degree. But
experience has shown that one or more of them will be present in
every protracted or difficult case and it seems desirable to set
them out. See Kendig, Procedures for Management of Non-Routine
Cases, 3 Hofstra L.Rev. 701 (1975).
The last sentence of subdivision (c) is new. See Wisconsin Civil
Procedure Rule 802.11(2). It has been added to meet one of the
criticisms of the present practice described earlier and insure
proper preconference preparation so that the meeting is more than a
ceremonial or ritualistic event. The reference to "authority" is
not intended to insist upon the ability to settle the litigation.
Nor should the rule be read to encourage the judge conducting the
conference to compel attorneys to enter into stipulations or to
make admissions that they consider to be unreasonable, that touch
on matters that could not normally have been anticipated to arise
at the conference, or on subjects of a dimension that normally
require prior consultation with and approval from the client.
Subdivision (d); Final Pretrial Conference. This provision has
been added to make it clear that the time between any final
pretrial conference (which in a simple case may be the only
pretrial conference) and trail should be as short as possible to be
certain that the litigants make substantial progress with the case
and avoid the inefficiency of having that preparation repeated when
there is a delay between the last pretrial conference and trial. An
optimum time of 10 days to two weeks has been suggested by one
federal judge. Rubin, The Managed Calendar: Some Pragmatic
Suggestions About Achieving the Just, Speedy and Inexpensive
Determination of Civil Cases in Federal Courts, 4 Just. Sys. J.
135, 141 (1976). The Committee, however, concluded that it would be
inappropriate to fix a precise time in the rule, given the numerous
variables that could bear on the matter. Thus the timing has been
left to the court's discretion.
At least one of the attorneys who will conduct the trial for each
party must be present at the final pretrial conference. At this
late date there should be no doubt as to which attorney or
attorneys this will be. Since the agreements and stipulations made
at this final conference will control the trial, the presence of
lawyers who will be involved in it is especially useful to assist
the judge in structuring the case, and to lead to a more effective
trial.
Subdivision (e); Pretrial Orders. Rule 16(e) does not
substantially change the portion of the original rule dealing with
pretrial orders. The purpose of an order is to guide the course of
the litigation and the language of the original rule making that
clear has been retained. No compelling reason has been found for
major revision, especially since this portion of the rule has been
interpreted and clarified by over forty years of judicial decisions
with comparatively little difficulty. See 6 Wright & Miller,
Federal Practice and Procedure: Civil Secs. 1521-30 (1971). Changes
in language therefore have been kept to a minimum to avoid
confusion.
Since the amended rule encourages more extensive pretrial
management than did the original, two or more conferences may be
held in many cases. The language of Rule 16(e) recognizes this
possibility and the corresponding need to issue more than one
pretrial order in a single case.
Once formulated, pretrial orders should not be changed lightly;
but total inflexibility is undesirable. See, e.g., Clark v.
Pennsylvania R.R. Co., 328 F.2d 591 (2d Cir. 1964). The exact words
used to describe the standard for amending the pretrial order
probably are less important than the meaning given them in
practice. By not imposing any limitation on the ability to modify a
pretrial order, the rule reflects the reality that in any process
of continuous management what is done at one conference may have to
be altered at the next. In the case of the final pretrial order,
however, a more stringent standard is called for and the words "to
prevent manifest injustice," which appeared in the original rule,
have been retained. They have the virtue of familiarity and
adequately describe the restraint the trial judge should exercise.
Many local rules make the plaintiff's attorney responsible for
drafting a proposed pretrial order, either before or after the
conference. Others allow the court to appoint any of the attorneys
to perform the task, and others leave it to the court. See Note,
Pretrial Conference: A Critical Examination of Local Rules Adopted
by Federal District Courts, 64 Va.L.Rev. 467 (1978). Rule 16 has
never addressed this matter. Since there is no consensus about
which method of drafting the order works best and there is no
reason to believe that nationwide uniformity is needed, the rule
has been left silent on the point. See Handbook for Effective
Pretrial Procedure, 37 F.R.D. 225 (1964).
Subdivision (f); Sanctions. Original Rule 16 did not mention the
sanctions that might be imposed for failing to comply with the
rule. However, courts have not hesitated to enforce it by
appropriate measures. See, e.g., Link v. Wabash R. Co., 370 U.S.
628 (1962) (district court's dismissal under Rule 41(b) after
plaintiff's attorney failed to appear at a pretrial conference
upheld); Admiral Theatre Corp. v. Douglas Theatre, 585 F.2d 877
(8th Cir. 1978) (district court has discretion to exclude exhibits
or refuse to permit the testimony of a witness not listed prior to
trial in contravention of its pretrial order).
To reflect that existing practice, and to obviate dependence upon
Rule 41(b) or the court's inherent power to regulate litigation,
cf. Societe Internationale Pour Participations Industrielles et
Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958), Rule 16(f)
expressly provides for imposing sanctions on disobedient or
recalcitrant parties, their attorneys, or both in four types of
situations. Rodes, Ripple & Mooney, Sanctions Imposable for
Violations of the Federal Rules of Civil Procedure 65-67, 80-84,
Federal Judicial Center (1981). Furthermore, explicit reference to
sanctions reenforces the rule's intention to encourage forceful
judicial management.
Rule 16(f) incorporates portions of Rule 37(b)(2), which
prescribes sanctions for failing to make discovery. This should
facilitate application of Rule 16(f), since courts and lawyers
already are familiar with the Rule 37 standards. Among the
sanctions authorized by the new subdivision are: preclusion order,
striking a pleading, staying the proceeding, default judgment,
contempt, and charging a party, his attorney, or both with the
expenses, including attorney's fees, caused by noncompliance. The
contempt sanction, however, is only available for a violation of a
court order. The references in Rule 16(f) are not exhaustive.
As is true under Rule 37(b)(2), the imposition of sanctions may
be sought by either the court or a party. In addition, the court
has discretion to impose whichever sanction it feels is appropriate
under the circumstances. Its action is reviewable under the
abuse-of-discretion standard. See National Hockey League v.
Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976).
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendments are technical. No substantive change is intended.
NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT
Subdivision (b). One purpose of this amendment is to provide a
more appropriate deadline for the initial scheduling order required
by the rule. The former rule directed that the order be entered
within 120 days from the filing of the complaint. This requirement
has created problems because Rule 4(m) allows 120 days for service
and ordinarily at least one defendant should be available to
participate in the process of formulating the scheduling order. The
revision provides that the order is to be entered within 90 days
after the date a defendant first appears (whether by answer or by a
motion under Rule 12) or, if earlier (as may occur in some actions
against the United States or if service is waived under Rule 4),
within 120 days after service of the complaint on a defendant. The
longer time provided by the revision is not intended to encourage
unnecessary delays in entering the scheduling order. Indeed, in
most cases the order can and should be entered at a much earlier
date. Rather, the additional time is intended to alleviate problems
in multi-defendant cases and should ordinarily be adequate to
enable participation by all defendants initially named in the
action.
In many cases the scheduling order can and should be entered
before this deadline. However, when setting a scheduling
conference, the court should take into account the effect this
setting will have in establishing deadlines for the parties to meet
under revised Rule 26(f) and to exchange information under revised
Rule 26(a)(1). While the parties are expected to stipulate to
additional time for making their disclosures when warranted by the
circumstances, a scheduling conference held before defendants have
had time to learn much about the case may result in diminishing the
value of the Rule 26(f) meeting, the parties' proposed discovery
plan, and indeed the conference itself.
New paragraph (4) has been added to highlight that it will
frequently be desirable for the scheduling order to include
provisions relating to the timing of disclosures under Rule 26(a).
While the initial disclosures required by Rule 26(a)(1) will
ordinarily have been made before entry of the scheduling order, the
timing and sequence for disclosure of expert testimony and of the
witnesses and exhibits to be used at trial should be tailored to
the circumstances of the case and is a matter that should be
considered at the initial scheduling conference. Similarly, the
scheduling order might contain provisions modifying the extent of
discovery (e.g., number and length of depositions) otherwise
permitted under these rules or by a local rule.
The report from the attorneys concerning their meeting and
proposed discovery plan, as required by revised Rule 26(f), should
be submitted to the court before the scheduling order is entered.
Their proposals, particularly regarding matters on which they
agree, should be of substantial value to the court in setting the
timing and limitations on discovery and should reduce the time of
the court needed to conduct a meaningful conference under Rule
16(b). As under the prior rule, while a scheduling order is
mandated, a scheduling conference is not. However, in view of the
benefits to be derived from the litigants and a judicial officer
meeting in person, a Rule 16(b) conference should, to the extent
practicable, be held in all cases that will involve discovery.
This subdivision, as well as subdivision (c)(8), also is revised
to reflect the new title of United States Magistrate Judges
pursuant to the Judicial Improvements Act of 1990.
Subdivision (c). The primary purposes of the changes in
subdivision (c) are to call attention to the opportunities for
structuring of trial under Rules 42, 50, and 52 and to eliminate
questions that have occasionally been raised regarding the
authority of the court to make appropriate orders designed either
to facilitate settlement or to provide for an efficient and
economical trial. The prefatory language of this subdivision is
revised to clarify the court's power to enter appropriate orders at
a conference notwithstanding the objection of a party. Of course
settlement is dependent upon agreement by the parties and, indeed,
a conference is most effective and productive when the parties
participate in a spirit of cooperation and mindful of their
responsibilities under Rule 1.
Paragraph (4) is revised to clarify that in advance of trial the
court may address the need for, and possible limitations on, the
use of expert testimony under Rule 702 of the Federal Rules of
Evidence. Even when proposed expert testimony might be admissible
under the standards of Rules 403 and 702 of the evidence rules, the
court may preclude or limit such testimony if the cost to the
litigants - which may include the cost to adversaries of securing
testimony on the same subjects by other experts - would be unduly
expensive given the needs of the case and the other evidence
available at trial.
Paragraph (5) is added (and the remaining paragraphs renumbered)
in recognition that use of Rule 56 to avoid or reduce the scope of
trial is a topic that can, and often should, be considered at a
pretrial conference. Renumbered paragraph (11) enables the court to
rule on pending motions for summary adjudication that are ripe for
decision at the time of the conference. Often, however, the
potential use of Rule 56 is a matter that arises from discussions
during a conference. The court may then call for motions to be
filed.
Paragraph (6) is added to emphasize that a major objective of
pretrial conferences should be to consider appropriate controls on
the extent and timing of discovery. In many cases the court should
also specify the times and sequence for disclosure of written
reports from experts under revised Rule 26(a)(2)(B) and perhaps
direct changes in the types of experts from whom written reports
are required. Consideration should also be given to possible
changes in the timing or form of the disclosure of trial witnesses
and documents under Rule 26(a)(3).
Paragraph (9) is revised to describe more accurately the various
procedures that, in addition to traditional settlement conferences,
may be helpful in settling litigation. Even if a case cannot
immediately be settled, the judge and attorneys can explore
possible use of alternative procedures such as mini-trials, summary
jury trials, mediation, neutral evaluation, and nonbinding
arbitration that can lead to consensual resolution of the dispute
without a full trial on the merits. The rule acknowledges the
presence of statutes and local rules or plans that may authorize
use of some of these procedures even when not agreed to by the
parties. See 28 U.S.C. Secs. 473(a)(6), 473(b)(4), 651-58; Section
104(b)(2), Pub. L. 101-650. The rule does not attempt to resolve
questions as to the extent a court would be authorized to require
such proceedings as an exercise of its inherent powers.
The amendment of paragraph (9) should be read in conjunction with
the sentence added to the end of subdivision (c), authorizing the
court to direct that, in appropriate cases, a responsible
representative of the parties be present or available by telephone
during a conference in order to discuss possible settlement of the
case. The sentence refers to participation by a party or its
representative. Whether this would be the individual party, an
officer of a corporate party, a representative from an insurance
carrier, or someone else would depend on the circumstances.
Particularly in litigation in which governmental agencies or large
amounts of money are involved, there may be no one with on-the-spot
settlement authority, and the most that should be expected is
access to a person who would have a major role in submitting a
recommendation to the body or board with ultimate decision-making
responsibility. The selection of the appropriate representative
should ordinarily be left to the party and its counsel. Finally, it
should be noted that the unwillingness of a party to be available,
even by telephone, for a settlement conference may be a clear
signal that the time and expense involved in pursuing settlement is
likely to be unproductive and that personal participation by the
parties should not be required.
The explicit authorization in the rule to require personal
participation in the manner stated is not intended to limit the
reasonable exercise of the court's inherent powers, e.g., G.
Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648 (7th Cir.
1989), or its power to require party participation under the Civil
Justice Reform Act of 1990. See 28 U.S.C. Sec. 473(b)(5) (civil
justice expense and delay reduction plans adopted by district
courts may include requirement that representatives "with authority
to bind [parties] in settlement discussions" be available during
settlement conferences).
New paragraphs (13) and (14) are added to call attention to the
opportunities for structuring of trial under Rule 42 and under
revised Rules 50 and 52.
Paragraph (15) is also new. It supplements the power of the court
to limit the extent of evidence under Rules 403 and 611(a) of the
Federal Rules of Evidence, which typically would be invoked as a
result of developments during trial. Limits on the length of trial
established at a conference in advance of trial can provide the
parties with a better opportunity to determine priorities and
exercise selectivity in presenting evidence than when limits are
imposed during trial. Any such limits must be reasonable under the
circumstances, and ordinarily the court should impose them only
after receiving appropriate submissions from the parties outlining
the nature of the testimony expected to be presented through
various witnesses, and the expected duration of direct and
cross-examination.
-End-
-CITE-
28 USC APPENDIX IV. PARTIES 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
IV. PARTIES
-HEAD-
IV. PARTIES
-End-
-CITE-
28 USC APPENDIX Rule 17 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
IV. PARTIES
-HEAD-
Rule 17. Parties Plaintiff and Defendant; Capacity
-STATUTE-
(a) Real Party in Interest. Every action shall be prosecuted in
the name of the real party in interest. An executor, administrator,
guardian, bailee, trustee of an express trust, a party with whom or
in whose name a contract has been made for the benefit of another,
or a party authorized by statute may sue in that person's own name
without joining the party for whose benefit the action is brought;
and when a statute of the United States so provides, an action for
the use or benefit of another shall be brought in the name of the
United States. No action shall be dismissed on the ground that it
is not prosecuted in the name of the real party in interest until a
reasonable time has been allowed after objection for ratification
of commencement of the action by, or joinder or substitution of,
the real party in interest; and such ratification, joinder, or
substitution shall have the same effect as if the action had been
commenced in the name of the real party in interest.
(b) Capacity To Sue or Be Sued. The capacity of an individual,
other than one acting in a representative capacity, to sue or be
sued shall be determined by the law of the individual's domicile.
The capacity of a corporation to sue or be sued shall be determined
by the law under which it was organized. In all other cases
capacity to sue or be sued shall be determined by the law of the
state in which the district court is held, except (1) that a
partnership or other unincorporated association, which has no such
capacity by the law of such state, may sue or be sued in its common
name for the purpose of enforcing for or against it a substantive
right existing under the Constitution or laws of the United States,
and (2) that the capacity of a receiver appointed by a court of the
United States to sue or be sued in a court of the United States is
governed by Title 28, U.S.C., Sections 754 and 959(a).
(c) Infants or Incompetent Persons. Whenever an infant or
incompetent person has a representative, such as a general
guardian, committee, conservator, or other like fiduciary, the
representative may sue or defend on behalf of the infant or
incompetent person. An infant or incompetent person who does not
have a duly appointed representative may sue by a next friend or by
a guardian ad litem. The court shall appoint a guardian ad litem
for an infant or incompetent person not otherwise represented in an
action or shall make such other order as it deems proper for the
protection of the infant or incompetent person.
-SOURCE-
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.
Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Pub. L. 100-690,
title VII, Sec. 7049, Nov. 18, 1988, 102 Stat. 4401.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
Note to Subdivision (a). The real party in interest provision,
except for the last clause which is new, is taken verbatim from
[former] Equity Rule 37 (Parties Generally - Intervention), except
that the word "expressly" has been omitted. For similar provisions
see N.Y.C.P.A. (1937) Sec. 210; Wyo.Rev.Stat.Ann. (1931) Secs.
89-501, 89-502, 89-503; English Rules Under the Judicature Act (The
Annual Practice, 1937) O. 16, r. 8. See also Equity Rule 41 (Suit
to Execute Trusts of Will - Heir as Party). For examples of
statutes of the United States providing particularly for an action
for the use or benefit of another in the name of the United States,
see U.S.C., [former] Title 40, Sec. 270b (Suit by persons
furnishing labor and material for work on public building contracts
* * * may sue on a payment bond, "in the name of the United States
for the use of the person suing") [now 40 U.S.C. Sec. 3133(b),
(c)]; and U.S.C., Title 25, Sec. 201 (Penalties under laws relating
to Indians - how recovered). Compare U.S.C., Title 26, [former]
Sec. 1645(c) (Suits for penalties, fines, and forfeitures, under
this title, where not otherwise provided for, to be in name of
United States).
Note to Subdivision (b). For capacity see generally Clark and
Moore, A New Federal Civil Procedure - II. Pleadings and Parties,
44 Yale L.J. 1291, 1312-1317 (1935) and specifically Coppedge v.
Clinton, 72 F.(2d) 531 (C.C.A.10th, 1934) (natural person); David
Lupton's Sons Co. v. Automobile Club of America, 225 U.S. 489
(1912) (corporation); Puerto Rico v. Russell & Co., 288 U.S. 476
(1933) (unincorporated ass'n.); United Mine Workers of America v.
Coronado Coal Co., 259 U.S. 344 (1922) (federal substantive right
enforced against unincorporated association by suit against the
association in its common name without naming all its members as
parties). This rule follows the existing law as to such
associations, as declared in the case last cited above. Compare
Moffat Tunnel League v. United States, 289 U.S. 113 (1933). See
note to Rule 23, clause (1).
Note to Subdivision (c). The provision for infants and
incompetent persons is substantially [former] Equity Rule 70 (Suits
by or Against Incompetents) with slight additions. Compare the more
detailed English provisions, English Rules Under the Judicature Act
(The Annual Practice, 1937) O. 16, r.r. 16-21.
NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT
The new matter [in subdivision (b)] makes clear the controlling
character of Rule 66 regarding suits by or against a federal
receiver in a federal court.
NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT
Since the statute states the capacity of a federal receiver to
sue or be sued, a repetitive statement in the rule is confusing and
undesirable.
NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT
The minor change in the text of the rule is designed to make it
clear that the specific instances enumerated are not exceptions to,
but illustrations of, the rule. These illustrations, of course,
carry no negative implication to the effect that there are not
other instances of recognition as the real party in interest of one
whose standing as such may be in doubt. The enumeration is simply
of cases in which there might be substantial doubt as to the issue
but for the specific enumeration. There are other potentially
arguable cases that are not excluded by the enumeration. For
example, the enumeration states that the promisee in a contract for
the benefit of a third party may sue as real party in interest; it
does not say, because it is obvious, that the third-party
beneficiary may sue (when the applicable law gives him that right.)
The rule adds to the illustrative list of real parties in
interest a bailee - meaning, of course, a bailee suing on behalf of
the bailor with respect to the property bailed. (When the possessor
of property other than the owner sues for an invasion of the
possessory interest he is the real party in interest.) The word
"bailee" is added primarily to preserve the admiralty practice
whereby the owner of a vessel as bailee of the cargo, or the master
of the vessel as bailee of both vessel and cargo, sues for damage
to either property interest or both. But there is no reason to
limit such a provision to maritime situations. The owner of a
warehouse in which household furniture is stored is equally
entitled to sue on behalf of the numerous owners of the furniture
stored. Cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).
The provision that no action shall be dismissed on the ground
that it is not prosecuted in the name of the real party in interest
until a reasonable time has been allowed, after the objection has
been raised, for ratification, substitution, etc., is added simply
in the interests of justice. In its origin the rule concerning the
real party in interest was permissive in purpose: it was designed
to allow an assignee to sue in his own name. That having been
accomplished, the modern function of the rule in its negative
aspect is simply to protect the defendant against a subsequent
action by the party actually entitled to recover, and to insure
generally that the judgment will have its proper effect as res
judicata.
This provision keeps pace with the law as it is actually
developing. Modern decisions are inclined to be lenient when an
honest mistake has been made in choosing the party in whose name
the action is to be filed - in both maritime and nonmaritime cases.
See Levinson v. Deupree, 345 U.S. 648 (1953); Link Aviation, Inc.
v. Downs, 325 F.2d 613 (D.C.Cir. 1963). The provision should not be
misunderstood or distorted. It is intended to prevent forfeiture
when determination of the proper party to sue is difficult or when
an understandable mistake has been made. It does not mean, for
example, that, following an airplane crash in which all aboard were
killed, an action may be filed in the name of John Doe (a
fictitious person), as personal representative of Richard Roe
(another fictitious person), in the hope that at a later time the
attorney filing the action may substitute the real name of the real
personal representative of a real victim, and have the benefit of
suspension of the limitation period. It does not even mean, when an
action is filed by the personal representative of John Smith, of
Buffalo, in the good faith belief that he was aboard the flight,
that upon discovery that Smith is alive and well, having missed the
fatal flight, the representative of James Brown, of San Francisco,
an actual victim, can be substituted to take advantage of the
suspension of the limitation period. It is, in cases of this sort,
intended to insure against forfeiture and injustice - in short, to
codify in broad terms the salutary principle of Levinson v.
Deupree, 345 U.S. 648 (1953), and Link Aviation, Inc. v. Downs, 325
F.2d 613 (D.C.Cir. 1963).
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendments are technical. No substantive change is intended.
NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT
The amendment is technical. No substantive change is intended.
AMENDMENT BY PUBLIC LAW
1988 - Subd. (a). Pub. L. 100-690, which directed amendment of
subd. (a) by striking "with him", could not be executed because of
the intervening amendment by the Court by order dated Apr. 25,
1988, eff. Aug. 1, 1988.
-End-
-CITE-
28 USC APPENDIX Rule 18 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
IV. PARTIES
-HEAD-
Rule 18. Joinder of Claims and Remedies
-STATUTE-
(a) Joinder of Claims. A party asserting a claim to relief as an
original claim, counterclaim, cross-claim, or third-party claim,
may join, either as independent or as alternate claims, as many
claims, legal, equitable, or maritime, as the party has against an
opposing party.
(b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim
is one heretofore cognizable only after another claim has been
prosecuted to a conclusion, the two claims may be joined in a
single action; but the court shall grant relief in that action only
in accordance with the relative substantive rights of the parties.
In particular, a plaintiff may state a claim for money and a claim
to have set aside a conveyance fraudulent as to that plaintiff,
without first having obtained a judgment establishing the claim for
money.
-SOURCE-
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
Note to Subdivision (a). 1. Recent development, both in code and
common law states, has been toward unlimited joinder of actions.
See Ill.Rev.Stat. (1937) ch. 110, Sec. 168; N.J.S.A. 2:27-37, as
modified by N.J.Sup.Ct.Rules, Rule 21, 2 N.J.Misc. 1208 (1924);
N.Y.C.P.A. (1937) Sec. 258 as amended by Laws of 1935, ch. 339.
2. This provision for joinder of actions has been patterned upon
[former] Equity Rule 26 (Joinder of Causes of Action) and broadened
to include multiple parties. Compare the English practice, English
Rules Under the Judicature Act (The Annual Practice, 1937) O. 18,
r.r. 1-9 (noting rules 1 and 6). The earlier American codes set
forth classes of joinder, following the now abandoned New York
rule. See N.Y.C.P.A. Sec. 258 before amended in 1935; Compare
Kan.Gen.Stat.Ann. (1935) Sec. 60-601; Wis.Stat. (1935) Sec. 263.04
for the more liberal practice.
3. The provisions of this rule for the joinder of claims are
subject to Rule 82 (Jurisdiction and Venue Unaffected). For the
jurisdictional aspects of joinder of claims, see Shulman and
Jaegerman, Some Jurisdictional Limitations on Federal Procedure
(1936), 45 Yale L.J. 393, 397-410. For separate trials of joined
claims, see Rule 42(b).
Note to Subdivision (b). This rule is inserted to make it clear
that in a single action a party should be accorded all the relief
to which he is entitled regardless of whether it is legal or
equitable or both. This necessarily includes a deficiency judgment
in foreclosure actions formerly provided for in [former] Equity
Rule 10 (Decree for Deficiency in Foreclosures, Etc.). In respect
to fraudulent conveyances the rule changes the former rule
requiring a prior judgment against the owner (Braun v. American
Laundry Mach. Co., 56 F.(2d) 197 (S.D.N.Y. 1932)) to conform to the
provisions of the Uniform Fraudulent Conveyance Act, Secs. 9 and
10. See McLaughlin, Application of the Uniform Fraudulent
Conveyance Act, 46 Harv.L.Rev. 404, 444 (1933).
NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT
The Rules "proceed upon the theory that no inconvenience can
result from the joinder of any two or more matters in the
pleadings, but only from trying two or more matters together which
have little or nothing in common." Sunderland, The New Federal
Rules, 45 W.Va.L.Q. 5, 13 (1938); see Clark, Code Pleading 58 (2d
ed. 1947). Accordingly, Rule 18(a) has permitted a party to plead
multiple claims of all types against an opposing party, subject to
the court's power to direct an appropriate procedure for trying the
claims. See Rules 42(b), 20(b), 21.
The liberal policy regarding joinder of claims in the pleadings
extends to cases with multiple parties. However, the language used
in the second sentence of Rule 18(a) - "if the requirements of
Rules 19 [necessary joinder of parties], 20 [permissive joinder of
parties], and 22 [interpleader] are satisfied" - has led some
courts to infer that the rules regulating joinder of parties are
intended to carry back to Rule 18(a) and to impose some special
limits on joinder of claims in multiparty cases. In particular,
Rule 20(a) has been read as restricting the operation of Rule 18(a)
in certain situations in which a number of parties have been
permissively joined in an action. In Federal Housing Admr. v.
Christianson, 26 F.Supp. 419 (D.Conn. 1939), the indorsee of two
notes sued the three comakers of one note, and sought to join in
the action a count on a second note which had been made by two of
the three defendants. There was no doubt about the propriety of the
joinder of the three parties defendant, for a right to relief was
being asserted against all three defendants which arose out of a
single "transaction" (the first note) and a question of fact or law
"common" to all three defendants would arise in the action. See the
text of Rule 20(a). The court, however, refused to allow the
joinder of the count on the second note, on the ground that this
right to relief, assumed to arise from a distinct transaction, did
not involve a question common to all the defendants but only two of
them. For analysis of the Christianson case and other authorities,
see 2 Barron & Holtzoff, Federal Practice & Procedure, Sec. 533.1
(Wright ed. 1961); 3 Moore's Federal Practice, par. 18.04[3] (2d
ed. 1963).
If the court's view is followed, it becomes necessary to enter at
the pleading stage into speculations about the exact relation
between the claim sought to be joined against fewer than all the
defendants properly joined in the action, and the claims asserted
against all the defendants. Cf. Wright, Joinder of Claims and
Parties Under Modern Pleading Rules, 36 Minn.L.Rev. 580, 605-06
(1952). Thus if it could be found in the Christianson situation
that the claim on the second note arose out of the same transaction
as the claim on the first or out of a transaction forming part of a
"series," and that any question of fact or law with respect to the
second note also arose with regard to the first, it would be held
that the claim on the second note could be joined in the complaint.
See 2 Barron & Holtzoff, supra, at 199; see also id. at 198 n.
60.4; cf. 3 Moore's Federal Practice, supra, at 1811. Such pleading
niceties provide a basis for delaying and wasteful maneuver. It is
more compatible with the design of the Rules to allow the claim to
be joined in the pleading, leaving the question of possible
separate trial of that claim to be later decided. See 2 Barron &
Holtzoff, supra, Sec. 533.1; Wright, supra, 36 Minn.L.Rev. at
604-11; Developments in the Law - Multiparty Litigation in the
Federal Courts, 71 Harv. 874, 970-71 (1958); Commentary, Relation
Between Joinder of Parties and Joinder of Claims, 5 F.R.Serv. 822
(1942). It is instructive to note that the court in the
Christianson case, while holding that the claim on the second note
could not be joined as a matter of pleading, held open the
possibility that both claims would later be consolidated for trial
under Rule 42(a). See 26 F.Supp. 419.
Rule 18(a) is now amended not only to overcome the Christianson
decision and similar authority, but also to state clearly as a
comprehensive proposition, that a party asserting a claim (an
original claim, counterclaim, cross-claim, or third-party claim)
may join as many claims as he has against an opposing party. See
Noland Co., Inc. v. Graver Tank & Mfg. Co., 301 F.2d 43, 49-51 (4th
Cir. 1962); but cf. C. W. Humphrey Co. v. Security Alum. Co., 31
F.R.D. 41 (E.D.Mich. 1962) This permitted joinder of claims is not
affected by the fact that there are multiple parties in the action.
The joinder of parties is governed by other rules operating
independently.
It is emphasized that amended Rule 18(a) deals only with
pleading. As already indicated, a claim properly joined as a matter
of pleading need not be proceeded with together with the other
claim if fairness or convenience justifies separate treatment.
Amended Rule 18(a), like the rule prior to amendment, does not
purport to deal with questions of jurisdiction or venue which may
arise with respect to claims properly joined as a matter of
pleading. See Rule 82.
See also the amendment of Rule 20(a) and the Advisory Committee's
Note thereto.
Free joinder of claims and remedies is one of the basic purposes
of unification of the admiralty and civil procedure. The amendment
accordingly provides for the inclusion in the rule of maritime
claims as well as those which are legal and equitable in character.
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendments are technical. No substantive change is intended.
-End-
-CITE-
28 USC APPENDIX Rule 19 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
IV. PARTIES
-HEAD-
Rule 19. Joinder of Persons Needed for Just Adjudication
-STATUTE-
(a) Persons To Be Joined if Feasible. A person who is subject to
service of process and whose joinder will not deprive the court of
jurisdiction over the subject matter of the action shall be joined
as a party in the action if (1) in the person's absence complete
relief cannot be accorded among those already parties, or (2) the
person claims an interest relating to the subject of the action and
is so situated that the disposition of the action in the person's
absence may (i) as a practical matter impair or impede the person's
ability to protect that interest or (ii) leave any of the persons
already parties subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations by reason of the
claimed interest. If the person has not been so joined, the court
shall order that the person be made a party. If the person should
join as a plaintiff but refuses to do so, the person may be made a
defendant, or, in a proper case, an involuntary plaintiff. If the
joined party objects to venue and joinder of that party would
render the venue of the action improper, that party shall be
dismissed from the action.
(b) Determination by Court Whenever Joinder Not Feasible. If a
person as described in subdivision (a)(1)-(2) hereof cannot be made
a party, the court shall determine whether in equity and good
conscience the action should proceed among the parties before it,
or should be dismissed, the absent person being thus regarded as
indispensable. The factors to be considered by the court include:
first, to what extent a judgment rendered in the person's absence
might be prejudicial to the person or those already parties;
second, the extent to which, by protective provisions in the
judgment, by the shaping of relief, or other measures, the
prejudice can be lessened or avoided; third, whether a judgment
rendered in the person's absence will be adequate; fourth, whether
the plaintiff will have an adequate remedy if the action is
dismissed for nonjoinder.
(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim
for relief shall state the names, if known to the pleader, of any
persons as described in subdivision (a)(1)-(2) hereof who are not
joined, and the reasons why they are not joined.
(d) Exception of Class Actions. This rule is subject to the
provisions of Rule 23.
-SOURCE-
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
Note to Subdivision (a). The first sentence with verbal
differences (e.g., "united" interest for "joint" interest) is to be
found in [former] Equity Rule 37 (Parties Generally -
Intervention). Such compulsory joinder provisions are common.
Compare Alaska Comp. Laws (1933) Sec. 3392 (containing in same
sentence a "class suit" provision); Wyo.Rev.Stat.Ann. (Courtright,
1931) Sec. 89-515 (immediately followed by "class suit" provisions,
Sec. 89-516). See also [former] Equity Rule 42 (Joint and Several
Demands). For example of a proper case for involuntary plaintiff,
see Independent Wireless Telegraph Co. v. Radio Corp. of America,
269 U.S. 459 (1926).
The joinder provisions of this rule are subject to Rule 82
(Jurisdiction and Venue Unaffected).
Note to Subdivision (b). For the substance of this rule see
[former] Equity Rule 39 (Absence of Persons Who Would be Proper
Parties) and U.S.C., Title 28, Sec. 111 [now 1391] (When part of
several defendants cannot be served); Camp v. Gress, 250 U.S. 308
(1919). See also the second and third sentences of [former] Equity
Rule 37 (Parties Generally - Intervention).
Note to Subdivision (c). For the substance of this rule see the
fourth subdivision of [former] Equity Rule 25 (Bill of Complaint -
Contents).
NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT
GENERAL CONSIDERATIONS
Whenever feasible, the persons materially interested in the
subject of an action - see the more detailed description of these
persons in the discussion of new subdivision (a) below - should be
joined as parties so that they may be heard and a complete
disposition made. When this comprehensive joinder cannot be
accomplished - a situation which may be encountered in Federal
courts because of limitations on service of process, subject matter
jurisdiction, and venue - the case should be examined pragmatically
and a choice made between the alternatives of proceeding with the
action in the absence of particular interested persons, and
dismissing the action.
Even if the court is mistaken in its decision to proceed in the
absence of an interested person, it does not by that token deprive
itself of the power to adjudicate as between the parties already
before it through proper service of process. But the court can make
a legally binding adjudication only between the parties actually
joined in the action. It is true that an adjudication between the
parties before the court may on occasion adversely affect the
absent person as a practical matter, or leave a party exposed to a
later inconsistent recovery by the absent person. These are factors
which should be considered in deciding whether the action should
proceed, or should rather be dismissed; but they do not themselves
negate the court's power to adjudicate as between the parties who
have been joined.
DEFECTS IN THE ORIGINAL RULE
The foregoing propositions were well understood in the older
equity practice, see Hazard, Indispensable Party: The Historical
Origin of a Procedural Phantom, 61 Colum.L.Rev. 1254 (1961), and
Rule 19 could be and often was applied in consonance with them. But
experience showed that the rule was defective in its phrasing and
did not point clearly to the proper basis of decision.
Textual defects. - (1) The expression "persons * * * who ought to
be parties if complete relief is to be accorded between those
already parties," appearing in original subdivision (b), was
apparently intended as a description of the persons whom it would
be desirable to join in the action, all questions of feasibility of
joinder being put to one side; but it was not adequately
descriptive of those persons.
(2) The word "Indispensable," appearing in original subdivision
(b), was apparently intended as an inclusive reference to the
interested persons in whose absence it would be advisable, all
factors having been considered, to dismiss the action. Yet the
sentence implied that there might be interested persons, not
"indispensable." in whose absence the action ought also to be
dismissed. Further, it seemed at least superficially plausible to
equate the word "indispensable" with the expression "having a joint
interest," appearing in subdivision (a). See United States v.
Washington Inst. of Tech., Inc., 138 F.2d 25, 26 (3d Cir. 1943);
cf. Chidester v. City of Newark, 162 F.2d 598 (3d Cir. 1947). But
persons holding an interest technically "joint" are not always so
related to an action that it would be unwise to proceed without
joining all of them, whereas persons holding an interest not
technically "joint" may have this relation to an action. See Reed,
Compulsory Joinder of Parties in Civil Actions, 55 Mich.L.Rev. 327,
356 ff., 483 (1957).
(3) The use of "indispensable" and "joint interest" in the
context of original Rule 19 directed attention to the technical or
abstract character of the rights or obligations of the persons
whose joinder was in question, and correspondingly distracted
attention from the pragmatic considerations which should be
controlling.
(4) The original rule, in dealing with the feasibility of joining
a person as a party to the action, besides referring to whether the
person was "subject to the jurisdiction of the court as to both
service of process and venue," spoke of whether the person could be
made a party "without depriving the court of jurisdiction of the
parties before it." The second quoted expression used
"jurisdiction" in the sense of the competence of the court over the
subject matter of the action, and in this sense the expression was
apt. However, by a familiar confusion, the expression seems to have
suggested to some that the absence from the lawsuit of a person who
was "indispensable" or "who ought to be [a] part[y]" itself
deprived the court of the power to adjudicate as between the
parties already joined. See Samuel Goldwyn, Inc. v. United Artists
Corp., 113 F.2d 703, 707 (3d Cir. 1940); McArthur v. Rosenbaum Co.
of Pittsburgh, 180 F.2d 617, 621 (3d Cir. 1949); cf. Calcote v.
Texas Pac. Coal & Oil Co., 157 F.2d 216 (5th Cir. 1946), cert.
denied, 329 U.S. 782 (1946), noted in 56 Yale L.J. 1088 (1947);
Reed, supra, 55 Mich.L.Rev. at 332-34.
Failure to point to correct basis of decision. The original rule
did not state affirmatively what factors were relevant in deciding
whether the action should proceed or be dismissed when joinder of
interested persons was infeasible. In some instances courts did not
undertake the relevant inquiry or were misled by the "jurisdiction"
fallacy. In other instances there was undue preoccupation with
abstract classifications of rights or obligations, as against
consideration of the particular consequences of proceeding with the
action and the ways by which these consequences might be
ameliorated by the shaping of final relief or other precautions.
Although these difficulties cannot be said to have been general
analysis of the cases showed that there was good reason for
attempting to strengthen the rule. The literature also indicated
how the rule should be reformed. See Reed, supra (discussion of the
important case of Shields v. Barrow, 17 How. (58 U.S.) 130 (1854),
appears at 55 Mich.L.Rev., p. 340 ff.); Hazard, supra; N.Y.
Temporary Comm. on Courts, First Preliminary Report, Legis.Doc.
1957, No. 6(b), pp. 28, 233; N.Y. Judicial Council, Twelfth
Ann.Rep., Legis.Doc. 1946, No. 17, p. 163; Joint Comm. on Michigan
Procedural Revision, Final Report, Pt. III, p. 69 (1960); Note,
Indispensable Parties in the Federal Courts, 65 Harv.L.Rev. 1050
(1952); Developments in the Law - Multiparty Litigation in the
Federal Courts, 71 Harv.L.Rev. 874, 879 (1958); Mich.Gen.Court
Rules, R. 205 (effective Jan. 1, 1963); N.Y.Civ.Prac.Law & Rules,
Sec. 1001 (effective Sept. 1, 1963).
THE AMENDED RULE
New subdivision (a) defines the persons whose joinder in the
action is desirable. Clause (1) stresses the desirability of
joining those persons in whose absence the court would be obliged
to grant partial or "hollow" rather than complete relief to the
parties before the court. The interests that are being furthered
here are not only those of the parties, but also that of the public
in avoiding repeated lawsuits on the same essential subject matter.
Clause (2)(i) recognizes the importance of protecting the person
whose joinder is in question against the practical prejudice to him
which may arise through a disposition of the action in his absence.
Clause (2)(ii) recognizes the need for considering whether a party
may be left, after the adjudication, in a position where a person
not joined can subject him to a double or otherwise inconsistent
liability. See Reed, supra, 55 Mich.L.Rev. at 330, 338; Note,
supra, 65 Harv.L.Rev. at 1052-57; Developments in the Law, supra,
71 Harv.L.Rev. at 881-85.
The subdivision (a) definition of persons to be joined is not
couched in terms of the abstract nature of their interests -
"joint," "united," "separable," or the like. See N.Y. Temporary
Comm. on Courts, First Preliminary Report, supra; Developments in
the Law, supra, at 880. It should be noted particularly, however,
that the description is not at variance with the settled
authorities holding that a tortfeasor with the usual
"joint-and-several" liability is merely a permissive party to an
action against another with like liability. See 3 Moore's Federal
Practice 2153 (2d ed. 1963); 2 Barron & Holtzoff, Federal Practice
& Procedure Sec. 513.8 (Wright ed. 1961). Joinder of these
tortfeasors continues to be regulated by Rule 20; compare Rule 14
on third-party practice.
If a person as described in subdivision (a)(1)(2) is amenable to
service of process and his joinder would not deprive the court of
jurisdiction in the sense of competence over the action, he should
be joined as a party; and if he has not been joined, the court
should order him to be brought into the action. If a party joined
has a valid objection to the venue and chooses to assert it, he
will be dismissed from the action.
Subdivision (b). - When a person as described in subdivision
(a)(1)-(2) cannot be made a party, the court is to determine
whether in equity and good conscience the action should proceed
among the parties already before it, or should be dismissed. That
this decision is to be made in the light of pragmatic
considerations has often been acknowledged by the courts. See Roos
v. Texas Co., 23 F.2d 171 (2d Cir. 1927), cert. denied, 277 U.S.
587 (1928); Niles-Bement-Pond Co. v. Iron Moulders, Union, 254 U.S.
77, 80 (1920). The subdivision sets out four relevant
considerations drawn from the experience revealed in the decided
cases. The factors are to a certain extent overlapping, and they
are not intended to exclude other considerations which may be
applicable in particular situations.
The first factor brings in a consideration of what a judgment in
the action would mean to the absentee. Would the absentee be
adversely affected in a practical sense, and if so, would the
prejudice be immediate and serious, or remote and minor? The
possible collateral consequences of the judgment upon the parties
already joined are also to be appraised. Would any party be exposed
to a fresh action by the absentee, and if so, how serious is the
threat? See the elaborate discussion in Reed, supra; cf. A. L.
Smith Iron Co. v. Dickson, 141 F.2d 3 (2d Cir. 1944); Caldwell Mfg.
Co. v. Unique Balance Co., 18 F.R.D. 258 (S.D.N.Y. 1955).
The second factor calls attention to the measures by which
prejudice may be averted or lessened. The "shaping of relief" is a
familiar expedient to this end. See, e.g., the award of money
damages in lieu of specific relief where the latter might affect an
absentee adversely. Ward v. Deavers, 203 F.2d 72 (D.C.Cir. 1953);
Miller & Lux, Inc. v. Nickel, 141 F.Supp. 41 (N.D.Calif. 1956). On
the use of "protective provisions," see Roos v. Texas Co., supra;
Atwood v. Rhode Island Hosp. Trust Co., 275 Fed. 513, 519 (1st Cir.
1921), cert. denied, 257 U.S. 661 (1922); cf. Stumpf v. Fidelity
Gas Co., 294 F.2d 886 (9th Cir. 1961); and the general statement in
National Licorice Co. v. Labor Board, 309 U.S. 350, 363 (1940).
Sometimes the party is himself able to take measures to avoid
prejudice. Thus a defendant faced with a prospect of a second suit
by an absentee may be in a position to bring the latter into the
action by defensive interpleader. See Hudson v. Newell, 172 F.2d
848, 852 mod., 176 F.2d 546 (5th Cir. 1949); Gauss v. Kirk, 198
F.2d 83, 86 (D.C.Cir. 1952); Abel v. Brayton Flying Service, Inc.,
248 F.2d 713, 716 (5th Cir. 1957) (suggestion of possibility of
counterclaim under Rule 13(h)); cf. Parker Rust-Proof Co. v.
Western Union Tel. Co., 105 F.2d 976 (2d Cir. 1939) cert. denied,
308 U.S. 597 (1939). See also the absentee may sometimes be able to
avert prejudice to himself by voluntarily appearing in the action
or intervening on an ancillary basis. See Developments in the Law,
supra, 71 Harv.L.Rev. at 882; Annot., Intervention or Subsequent
Joinder of Parties as Affecting Jurisdiction of Federal Court Based
on Diversity of Citizenship, 134 A.L.R. 335 (1941); Johnson v.
Middleton, 175 F.2d 535 (7th Cir. 1949); Kentucky Nat. Gas Corp. v.
Duggins, 165 F.2d 1011 (6th Cir. 1948); McComb v. McCormack, 159
F.2d 219 (5th Cir. 1947). The court should consider whether this,
in turn, would impose undue hardship on the absentee. (For the
possibility of the court's informing an absentee of the pendency of
the action, see comment under subdivision (c) below.)
The third factor - whether an "adequate" judgment can be rendered
in the absence of a given person - calls attention to the extent of
the relief that can be accorded among the parties joined. It meshes
with the other factors, especially the "shaping of relief"
mentioned under the second factor. Cf. Kroese v. General Steel
Castings Corp., 179 F.2d 760 (3d Cir. 1949), cert. denied, 339 U.S.
983 (1950).
The fourth factor, looking to the practical effects of a
dismissal, indicates that the court should consider whether there
is any assurance that the plaintiff, if dismissed, could sue
effectively in another forum where better joinder would be
possible. See Fitzgerald v. Haynes, 241 F.2d 417, 420 (3d Cir.
1957); Fouke v. Schenewerk, 197 F.2d 234, 236 (5th Cir. 1952); cf.
Warfield v. Marks, 190 F.2d 178 (5th Cir. 1951).
The subdivision uses the word "indispensable" only in a
conclusory sense, that is, a person is "regarded as indispensable"
when he cannot be made a party and, upon consideration of the
factors above mention, it is determined that in his absence it
would be preferable to dismiss the action, rather than to retain
it.
A person may be added as a party at any stage of the action on
motion or on the court's initiative (see Rule 21); and a motion to
dismiss, on the ground that a person has not been joined and
justice requires that the action should not proceed in his absence,
may be made as late as the trial on the merits (see Rule 12(h)(2),
as amended; cf. Rule 12(b)(7), as amended). However, when the
moving party is seeking dismissal in order to protect himself
against a later suit by the absent person (subdivision (a)(2)(ii)),
and is not seeking vicariously to protect the absent person against
a prejudicial judgment (subdivision (a)(2)(i)), his undue delay in
making the motion can properly be counted against him as a reason
for denying the motion. A joinder question should be decided with
reasonable promptness, but decision may properly be deferred if
adequate information is not available at the time. Thus the
relationship of an absent person to the action, and the practical
effects of an adjudication upon him and others, may not be
sufficiently revealed at the pleading stage; in such a case it
would be appropriate to defer decision until the action was further
advanced. Cf. Rule 12(d).
The amended rule makes no special provision for the problem
arising in suits against subordinate Federal officials where it has
often been set up as a defense that some superior officer must be
joined. Frequently this defense has been accompanied by or
intermingled with defenses of sovereign community or lack of
consent of the United States to suit. So far as the issue of
joinder can be isolated from the rest, the new subdivision seems
better adapted to handle it than the predecessor provision. See the
discussion in Johnson v. Kirkland, 290 F.2d 440, 446-47 (5th Cir.
1961) (stressing the practical orientation of the decisions);
Shaughnessy v. Pedreiro, 349 U.S. 48, 54 (1955). Recent
legislation, P.L. 87-748, 76 Stat. 744, approved October 5, 1962,
adding Secs. 1361, 1391(e) to Title 28, U.S.C., vests original
jurisdiction in the District Courts over actions in the nature of
mandamus to compel officials of the United States to perform their
legal duties, and extends the range of service of process and
liberalizes venue in these actions. If, then, it is found that a
particular official should be joined in the action, the legislation
will make it easy to bring him in.
Subdivision (c) parallels the predecessor subdivision (c) of Rule
19. In some situations it may be desirable to advise a person who
has not been joined of the fact that the action is pending, and in
particular cases the court in its discretion may itself convey this
information by directing a letter or other informal notice to the
absentee.
Subdivision (d) repeats the exception contained in the first
clause of the predecessor subdivision (a).
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendments are technical. No substantive change is intended.
-End-
-CITE-
28 USC APPENDIX Rule 20 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
IV. PARTIES
-HEAD-
Rule 20. Permissive Joinder of Parties
-STATUTE-
(a) Permissive Joinder. All persons may join in one action as
plaintiffs if they assert any right to relief jointly, severally,
or in the alternative in respect of or arising out of the same
transaction, occurrence, or series of transactions or occurrences
and if any question of law or fact common to all these persons will
arise in the action. All persons (and any vessel, cargo or other
property subject to admiralty process in rem) may be joined in one
action as defendants if there is asserted against them jointly,
severally, or in the alternative, any right to relief in respect of
or arising out of the same transaction, occurrence, or series of
transactions or occurrences and if any question of law or fact
common to all defendants will arise in the action. A plaintiff or
defendant need not be interested in obtaining or defending against
all the relief demanded. Judgment may be given for one or more of
the plaintiffs according to their respective rights to relief, and
against one or more defendants according to their respective
liabilities.
(b) Separate Trials. The court may make such orders as will
prevent a party from being embarrassed, delayed, or put to expense
by the inclusion of a party against whom the party asserts no claim
and who asserts no claim against the party, and may order separate
trials or make other orders to prevent delay or prejudice.
-SOURCE-
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
The provisions for joinder here stated are in substance the
provisions found in England, California, Illinois, New Jersey, and
New York. They represent only a moderate expansion of the present
federal equity practice to cover both law and equity actions.
With this rule compare also [former] Equity Rules 26 (Joinder of
Causes of Action), 37 (Parties Generally - Intervention), 40
(Nominal Parties), and 42 (Joint and Several Demands).
The provisions of this rule for the joinder of parties are
subject to Rule 82 (Jurisdiction and Venue Unaffected).
Note to Subdivision (a). The first sentence is derived from
English Rules Under the Judicature Act (The Annual Practice, 1937)
O. 16, r. 1. Compare Calif.Code Civ.Proc. (Deering, 1937) Secs.
378, 379a; Ill.Rev.Stat. (1937) ch. 110, Secs. 147-148;
N.J.Comp.Stat. (2 Cum.Supp., 1911-1924), N.Y.C.P.A. (1937) Secs.
209, 211. The second sentence is derived from English Rules Under
the Judicature Act (he Annual Practice, 1937) O. 16, r. 4. The
third sentence is derived from O. 16, r. 5, and the fourth from O.
16, r.r. 1 and 4.
Note to Subdivision (b). This is derived from English Rules Under
the Judicature Act (The Annual Practice, 1937) O. 16, r.r. 1 and 5.
NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT
See the amendment of Rule 18(a) and the Advisory Committee's Note
thereto. It has been thought that a lack of clarity in the
antecedent of the word "them," as it appeared in two places in Rule
20(a), contributed to the view, taken by some courts, that this
rule limited the joinder of claims in certain situations of
permissive party joinder. Although the amendment of Rule 18(a)
should make clear that this view is untenable, it has been
considered advisable to amend Rule 20(a) to eliminate any
ambiguity. See 2 Barron & Holtzoff, Federal Practice & Procedure
202 (Wright Ed. 1961).
A basic purpose of unification of admiralty and civil procedure
is to reduce barriers to joinder; hence the reference to "any
vessel," etc.
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendments are technical. No substantive change is intended.
-End-
-CITE-
28 USC APPENDIX Rule 21 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
IV. PARTIES
-HEAD-
Rule 21. Misjoinder and Non-Joinder of Parties
-STATUTE-
Misjoinder of parties is not ground for dismissal of an action.
Parties may be dropped or added by order of the court on motion of
any party or of its own initiative at any stage of the action and
on such terms as are just. Any claim against a party may be severed
and proceeded with separately.
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
See English Rules Under the Judicature Act (The Annual Practice,
1937) O. 16, r. 11. See also [former] Equity Rules 43 (Defect of
Parties - Resisting Objection) and 44 (Defect of Parties - Tardy
Objection).
For separate trials see Rules 13(i) (Counterclaims and
Cross-Claims: Separate Trials; Separate Judgments), 20(b)
(Permissive Joinder of Parties: Separate Trials), and 42(b)
(Separate Trials, generally) and the note to the latter rule.
-End-
-CITE-
28 USC APPENDIX Rule 22 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
IV. PARTIES
-HEAD-
Rule 22. Interpleader
-STATUTE-
(1) Persons having claims against the plaintiff may be joined as
defendants and required to interplead when their claims are such
that the plaintiff is or may be exposed to double or multiple
liability. It is not ground for objection to the joinder that the
claims of the several claimants or the titles on which their claims
depend do not have a common origin or are not identical but are
adverse to and independent of one another, or that the plaintiff
avers that the plaintiff is not liable in whole or in part to any
or all of the claimants. A defendant exposed to similar liability
may obtain such interpleader by way of cross-claim or counterclaim.
The provisions of this rule supplement and do not in any way limit
the joinder of parties permitted in Rule 20.
(2) The remedy herein provided is in addition to and in no way
supersedes or limits the remedy provided by Title 28, U.S.C., Secs.
1335, 1397, and 2361. Actions under those provisions shall be
conducted in accordance with these rules.
-SOURCE-
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987, eff.
Aug. 1, 1987.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
The first paragraph provides for interpleader relief along the
newer and more liberal lines of joinder in the alternative. It
avoids the confusion and restrictions that developed around actions
of strict interpleader and actions in the nature of interpleader.
Compare John Hancock Mutual Life Insurance Co. v. Kegan et al.,
(D.C.Md., 1938) [22 F.Supp. 326]. It does not change the rules on
service of process, jurisdiction, and venue, as established by
judicial decision.
The second paragraph allows an action to be brought under the
recent interpleader statute when applicable. By this paragraph all
remedies under the statute are continued, but the manner of
obtaining them is in accordance with these rules. For temporary
restraining orders and preliminary injunctions under this statute,
see Rule 65(e).
This rule substantially continues such statutory provisions as
U.S.C., Title 38, Sec. 445 [now 1984] (Actions on claims;
jurisdiction; parties; procedure; limitation; witnesses;
definitions) (actions upon veterans' contracts of insurance with
the United States), providing for interpleader by the United States
where it acknowledges indebtedness under a contract of insurance
with the United States; U.S.C., Title 49, Sec. 97 [now 80110(e)]
(Interpleader of conflicting claimants) (by carrier which has
issued bill of lading). See Chafee, The Federal Interpleader Act of
1936: I and II (1936), 45 Yale L.J. 963, 1161.
NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT
The amendment substitutes the present statutory reference.
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendment is technical. No substantive change is intended.
-End-
-CITE-
28 USC APPENDIX Rule 23 01/06/03
-EXPCITE-
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
IV. PARTIES
-HEAD-
Rule 23. Class Actions
-STATUTE-
(a) Prerequisites to a Class Action. One or more members of a
class may sue or be sued as representative parties on behalf of all
only if (1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common to the
class, (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect the
interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a
class action if the prerequisites of subdivision (a) are satisfied,
and in addition:
(1) the prosecution of separate actions by or against
individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to
individual members of the class which would establish
incompatible standards of conduct for the party opposing the
class, or
(B) adjudications with respect to individual members of the
class which would as a practical matter be dispositive of the
interests of the other members not parties to the adjudications
or substantially impair or impede their ability to protect
their interests; or
(2) the party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding declaratory
relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to
the members of the class predominate over any questions affecting
only individual members, and that a class action is superior to
other available methods for the fair and efficient adjudication
of the controversy. The matters pertinent to the findings
include: (A) the interest of members of the class in individually
controlling the prosecution or defense of separate actions; (B)
the extent and nature of any litigation concerning the
controversy already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; (D) the
difficulties likely to be encountered in the management of a
class action.
(c) Determination by Order Whether Class Action To Be Maintained;
Notice; Judgment; Actions Conducted Partially as Class Actions.
(1) As soon as practicable after the commencement of an action
brought as a class action, the court shall determine by order
whether it is to be so maintained. An order under this
subdivision may be conditional, and may be altered or amended
before the decision on the merits.
(2) In any class action maintained under subdivision (b)(3),
the court shall direct to the members of the class the best
notice practicable under the circumstances, including individual
notice to all members who can be identified through reasonable
effort. The notice shall advise each member that (A) the court
will exclude the member from the class if the member so requests
by a specified date; (B) the judgment, whether favorable or not,
will include all members who do not request exclusion; and (C)
any member who does not request exclusion may, if the member
desires, enter an appearance through counsel.
(3) The judgment in an action maintained as a class action
under subdivision (b)(1) or (b)(2), whether or not favorable to
the class, shall include and describe those whom the court finds
to be members of the class. The judgment in an action maintained
as a class action under subdivision (b)(3), whether or not
favorable to the class, shall include and specify or describe
those to whom the notice provided in subdivision (c)(2) was
directed, and who have not requested exclusion, and whom the
court finds to be members of the class.
(4) When appropriate (A) an action may be brought or maintained
as a class action with respect to particular issues, or (B) a
class may be divided into subclasses and each subclass treated as
a class, and the provisions of this rule shall then be construed
and applied accordingly.
(d) Orders in Conduct of Actions. In the conduct of actions to
which this rule applies, the court may make appropriate orders: (1)
determining the course of proceedings or prescribing measures to
prevent undue repetition or complication in the presentation of
evidence or argument; (2) requiring, for the protection of the
members of the class or otherwise for the fair conduct of the
action, that notice be given in such manner as the court may direct
to some or all of the members of any step in the action, or of the
proposed extent of the judgment, or of the opportunity of members
to signify whether they consider the representation fair and
adequate, to intervene and present claims or defenses, or otherwise
to come into the action; (3) imposing conditions on the
representative parties or on intervenors; (4) requiring that the
pleadings be amended to eliminate therefrom allegations as to
representation of absent persons, and that the action proceed
accordingly; (5) dealing with similar procedural matters. The
orders may be combined with an order under Rule 16, and may be
altered or amended as may be desirable from time to time.
(e) Dismissal or Compromise. A class action shall not be
dismissed or compromised without the approval of the court, and
notice of the proposed dismissal or compromise shall be given to
all members of the class in such manner as the court directs.
(f) Appeals. A court of appeals may in its discretion permit an
appeal from an order of a district court granting or denying class
action certification under this rule if application is made to it
within ten days after entry of the order. An appeal does not stay
proceedings in the district court unless the district judge or the
court of appeals so orders.
-SOURCE-
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 24, 1998, eff. Dec. 1, 1998.)
-MISC1-
NOTES OF ADVISORY COMMITTEE ON RULES - 1937
Note to Subdivision (a). This is a substantial restatement of
[former] Equity Rule 38 (Representatives of Class) as that rule has
been construed. It applies to all actions, whether formerly
denominated legal or equitable. For a general analysis of class
actions, effect of judgment, and requisites of jurisdiction see
Moore, Federal Rules of Civil Procedure: Some Problems Raised by
the Preliminary Draft, 25 Georgetown L.J. 551, 570 et seq. (1937);
Moore and Cohn, Federal Class Actions, 32 Ill.L.Rev. 307 (1937);
Moore and Cohn, Federal Class Actions - Jurisdiction and Effect of
Judgment, 32 Ill.L.Rev. 555 - 567 (1938); Lesar, Class Suits and
the Federal Rules, 22 Minn.L.Rev. 34 (1937); cf. Arnold and James,
Cases on Trials, Judgments and Appeals (1936) 175; and see Blume,
Jurisdictional Amount in Representative Suits, 15 Minn.L.Rev. 501
(1931).
The general test of [former] Equity Rule 38 (Representatives of
Class) that the question should be "one of common or general
interest to many persons constituting a class so numerous as to
make it impracticable to bring them all before the court," is a
common test. For states which require the two elements of a common
or general interest and numerous persons, as provided for in
[former] Equity Rule 38, see Del.Ch.Rule 113; Fla.Comp.Gen.Laws
Ann. (Supp., 1936) Sec. 4918 (7); Georgia Code (1933) Sec. 37-1002,
and see English Rules Under the Judicature Act (The Annual
Practice, 1937) O. 16, r. 9. For statutory provisions providing for
class actions when the question is one of common or general
interest or when the parties are numerous, see Ala.Code Ann.
(Michie, 1928) Sec. 5701; 2 Ind.Stat.Ann. (Burns, 1933) Sec. 2-220;
N.Y.C.P.A. (1937) Sec. 195; Wis.Stat. (1935) Sec. 260.12. These
statutes have, however, been uniformly construed as though phrased
in the conjunctive. See Garfein v. Stiglitz, 260 Ky. 430, 86
S.W.(2d) 155 (1935). The rule adopts the test of [former] Equity
Rule 38, but defines what constitutes a "common or general
interest". Compare with code provisions which make the action
dependent upon the propriety of joinder of the parties. See Blume,
The "Common Questions" Principle in the Code Provision for
Representative Suits, 30 Mich.L.Rev. 878 (1932). For discussion of
what constitutes "numerous persons" see Wheaton, Representative
Suits Involving Numerous Litigants, 19 Corn.L.Q. 399 (1934); Note,
36 Harv.L.Rev. 89 (1922).
Clause (1), Joint, Common, or Secondary Right. This clause is
illustrated in actions brought by or against representatives of an
unincorporated association. See Oster v. Brotherhood of Locomotive
Firemen and Enginemen, 271 Pa. 419, 114 Atl. 377 (1921); Pickett v.
Walsh, 192 Mass. 572, 78 N.E. 753, 6 L.R.A. (N.S.) 1067 (1906);
Colt v. Hicks, 97 Ind.App. 177, 179 N.E. 335 (1932). Compare Rule
17(b) as to when an unincorporated association has capacity to sue
or be sued in its common name; United Mine Workers of America v.
Coronado Coal Co., 259 U.S. 344 (1922) (an unincorporated
association was sued as an entity for the purpose of enforcing
against it a federal substantive right); Moore, Federal Rules of
Civil Procedure: Some Problems Raised by the Preliminary Draft, 25
Georgetown L.J. 551, 566 (for discussion of jurisdictional
requisites when an unincorporated association sues or is sued in
its common name and jurisdiction is founded upon diversity of
citizenship). For an action brought by representatives of one group
against representatives of another group for distribution of a fund
held by an unincorporated association, see Smith v. Swormstedt, 16
How. 288 (U.S. 1853). Compare Christopher, et al. v. Brusselback,
58 S.Ct. 350 [302 U.S. 500] (1938).
For an action to enforce rights held in common by policyholders
against the corporate issuer of the policies, see Supreme Tribe of
Ben Hur v. Cauble, 255 U.S. 356 (1921). See also Terry v. Little,
101 U.S. 216 (1880); John A. Roebling's Sons Co. v. Kinnicutt, 248
Fed. 596 (D.C.N.Y., 1917) dealing with the right held in common by
creditors to enforce the statutory liability of stockholders.
Typical of a secondary action is a suit by stockholders to
enforce a corporate right. For discussion of the general nature of
these actions see Ashwander v. Tennessee Valley Authority, 297 U.S.
288 (1936); Glenn, The Stockholder's Suit - Corporate and
Individual Grievances, 33 Yale L.J. 580 (1924); McLaughlin,
Capacity of Plaintiff-Stockholder to Terminate a Stockholder's
Suit, 46 Yale L.J. 421 (1937). See also Subdivision (b) of this
rule which deals with Shareholder's Action; Note, 15 Minn.L.Rev.
453 (1931).
Clause (2). A creditor's action for liquidation or reorganization
of a corporation is illustrative of this clause. An action by a
stockholder against certain named defendants as representatives of
numerous claimants presents a situation converse to the creditor's
action.
Clause (3). See Everglades Drainage League v. Napoleon Broward
Drainage Dist., 253 Fed. 246 (D.C.Fla., 1918); Gramling v. Maxwell,
52 F.(2d) 256 (D.C.N.C., 1931), approved in 30 Mich.L.Rev. 624
(1932); Skinner v. Mitchell, 108 Kan. 861, 197 Pac. 569 (1921);
Duke of Bedford v. Ellis (1901) A.C. 1, for class actions when
there were numerous persons and there was only a question of law or
fact common to them; and see Blume, The "Common Questions"
Principle in the Code Provision for Representative Suits, 30
Mich.L.Rev. 878 (1932).
Note to Subdivision (b). This is [former] Equity Rule 27
(Stockholder's Bill) with verbal changes. See also Hawes v.
Oakland, 104 U.S. 450, 26 L.Ed. 827 (1882) and former Equity Rule
94, promulgated January 23, 1882, 104 U.S. IX.
Note to Subdivision (c). See McLaughlin, Capacity of
Plaintiff-Stockholder to Terminate a Stockholder's Suit, 46 Yale
L.J. 421 (1937).
NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT
Subdivision (b), relating to secondary actions by shareholders,
provides among other things, that in, such an action the
complainant "shall aver (1) that the plaintiff was a shareholder at
the time of the transaction of which he complains or that his share
thereafter devolved on him by operation of law . . ."
As a result of the decision in Erie R. Co. v. Tompkins, 304 U.S.
64 (decided April 25, 1938, after this rule was promulgated by the
Supreme Court, though before it took effect) a question has arisen
as to whether the provision above quoted deals with a matter of
substantive right or is a matter of procedure. If it is a matter of
substantive law or right, then under Erie R. Co. v. Tompkins clause
(1) may not be validly applied in cases pending in states whose
local law permits a shareholder to maintain such actions, although
not a shareholder at the time of the transactions complained of.
The Advisory Committee, believing the question should be settled in
the courts, proposes no change in Rule 23 but thinks rather that
the situation should be explained in an appropriate note.
The rule has a long history. In Hawes v. Oakland (1882) 104 U.S.
450, the Court held that a shareholder could not maintain such an
action unless he owned shares at the time of the transactions
complained of, or unless they devolved on him by operation of law.
At that time the decision in Swift v. Tyson (1842) 16 Peters 1, was
the law, and the federal courts considered themselves free to
establish their own principles of equity jurisprudence, so the
Court was not in 1882 and has not been, until Erie R. Co. v.
Tompkins in 1938, concerned with the question whether Hawes v.
Oakland dealt with substantive right or procedure.
Following the decision in Hawes v. Oakland, and at the same term,
the Court, to implement its decision, adopted [former] Equity Rule
94, which contained the same provision above quoted from Rule 23
F.R.C.P. The provision in [former] Equity Rule 94 was later
embodied in [former] Equity Rule 27, of which the present Rule 23
is substantially a copy.
In City of Quincy v. Steel (1887) 120 U.S. 241, 245, the Court
referring to Hawes v. Oakland said: "In order to give effect to the
principles there laid down, this Court at that term adopted Rule 94
of the rules of practice for courts of equity of the United
States."
Some other cases dealing with [former] Equity Rules 94 or 27
prior to the decision in Erie R. Co. v. Tompkins are Dimpfel v.
Ohio & Miss. R. R. (1884) 110 U.S. 209; Illinois Central R. Co. v.
Adams (1901) 180 U.S. 28, 34; Venner v. Great Northern Ry. (1908)
209 U.S. 24, 30; Jacobson v. General Motors Corp. (S.D.N.Y. 1938)
22 F.Supp. 255, 257. These cases generally treat Hawes v. Oakland
as establishing a "principle" of equity, or as dealing not with
jurisdiction but with the "right" to maintain an action, or have
said that the defense under the equity rule is analogous to the
defense that the plaintiff has no "title" and results in a
dismissal "for want of equity."
Those state decisions which held that a shareholder acquiring
stock after the event may maintain a derivative action are founded
on the view that it is a right belonging to the shareholder at the
time of the transaction and which passes as a right to the
subsequent purchaser. See Pollitz v. Gould (1911) 202 N.Y. 11.
The first case arising after the decision in Erie R. Co. v.
Tompkins, in which this problem was involved, was Summers v. Hearst
(S.D.N.Y. 1938) 23 F.Supp. 986. It concerned [former] Equity Rule
27, as Federal Rule 23 was not then in effect. In a well considered
opinion Judge Leibell reviewed the decisions and said: "The federal
cases that discuss this section of Rule 27 support the view that it
states a principle of substantive law." He quoted Pollitz v. Gould
(1911) 202 N.Y. 11, as saying that the United States Supreme Court
"seems to have been more concerned with establishing this rule as
one of practice than of substantive law" but that "whether it be
regarded as establishing a principle of law or a rule of practice,
this authority has been subsequently followed in the United States
courts."
He then concluded that, although the federal decisions treat the
equity rule as "stating a principle of substantive law", if
[former] "Equity Rule 27 is to be modified or revoked in view of
Erie R. Co. v. Tompkins, it is not the province of this Court to
suggest it, much less impliedly to follow that course by
disregarding the mandatory provisions of the Rule."
Some other federal decisions since 1938 touch the question.
In Piccard v. Sperry Corporation (S.D.N.Y. 1941) 36 F.Supp. 1006,
1009-10, affirmed without opinion (C.C.A.2d, 1941) 120 F.(2d) 328,
a shareholder, not such at the time of the transactions complained
of, sought to intervene. The court held an intervenor was as much
subject to Rule 23 as an original plaintiff; and that the
requirement of Rule 23(b) was "a matter of practice," not
substance, and applied in New York where the state law was
otherwise, despite Erie R. Co. v. Tompkins. In York v. Guaranty
Trust Co. of New York (C.C.A.2d, 1944) 143 F.(2d) 503, rev'd on
other grounds (1945) 65 S.Ct. 1464, the court said: "Restrictions
on the bringing of stockholders' actions, such as those imposed by
F.R.C.P. 23(b) or other state statutes are procedural," citing the
Piccard and other cases.
In Gallup v. Caldwell (C.C.A.3d, 1941) 120 F.(2d) 90, 95, arising
in New Jersey, the point was raised but not decided, the court
saying that it was not satisfied that the then New Jersey rule
differed from Rule 23(b), and that "under the circumstances the
proper course was to follow Rule 23(b)."
In Mullins v. De Soto Securities Co. (W.D.La. 1942) 45 F.Supp.
871, 878, the point was not decided, because the court found the
Louisiana rule to be the same as that stated in Rule 23(b).
In Toebelman v. Missouri-Kansas Pipe Line Co. (D.Del. 1941) 41
F.Supp. 334, 340, the court dealt only with another part of Rule
23(b), relating to prior demands on the stockholders and did not
discuss Erie R. Co. v. Tompkins, or its effect on the rule.
In Perrott v. United States Banking Corp. (D.Del. 1944) 53
F.Supp. 953, it appeared that the Delaware law does not require the
plaintiff to have owned shares at the time of the transaction
complained of. The court sustained Rule 23(b), after discussion of
the authorities, saying:
"It seems to me the rule does not go beyond procedure. * * *
Simply because a particular plaintiff cannot qualify as a proper
party to maintain such an action does not destroy or even whittle
at the cause of action. The cause of action exists until a
qualified plaintiff can get it started in a federal court."
In Bankers Nat. Corp. v. Barr (S.D.N.Y. 1945) 9 Fed.Rules Serv.
23b.11, Case 1, the court held Rule 23(b) to be one of procedure,
but that whether the plaintiff was a stockholder was a substantive
question to be settled by state law.
The New York rule, as stated in Pollitz v. Gould, supra, has been
altered by an act of the New York Legislature (Chapter 667, Laws of
1944, effective April 9, 1944, General Corporation Law, Sec. 61)
which provides that "in any action brought by a shareholder in the
right of a . . . corporation, it must appear that the plaintiff was
a stockholder at the time of the transaction of which he complains,
or that his stock thereafter devolved upon him by operation of
law." At the same time a further and separate provision was
enacted, requiring under certain circumstances the giving of
security for reasonable expenses and attorney's fees, to which
security the corporation in whose right the action is brought and
the defendants therein may have recourse. (Chapter 668, Laws of
1944, effective April 9, 1944, General Corporation Law, Sec. 61-b.)
These provisions are aimed at so-called "strike" stockholders'
suits and their attendant abuses. Shielcrawt v. Moffett (Ct.App.
1945) 294 N.Y. 180, 61 N.E.(2d) 435, rev'g 51 N.Y.S.(2d) 188, aff'g
49 N.Y.S.(2d) 64; Noel Associates, Inc. v. Merrill (Sup.Ct. 1944)
184 Misc. 646, 53 N.Y.S.(2d) 143.
Insofar as Sec. 61 is concerned, it has been held that the
section is procedural in nature. Klum v. Clinton Trust Co. (Sup.Ct.
1944) 183 Misc. 340, 48 N.Y.S.(2d) 267; Noel Associates, Inc. v.
Merrill, supra. In the latter case the court pointed out that "The
1944 amendment to Section 61 rejected the rule laid down in the
Pollitz case and substituted, in place thereof, in its precise
language, the rule which has long prevailed in the Federal Courts
and which is now Rule 23(b) . . ." There is, nevertheless, a
difference of opinion regarding the application of the statute to
pending actions. See Klum v. Clinton Trust Co., supra (applicable);
Noel Associates, Inc. v. Merrill, supra (inapplicable).
With respect to Sec. 61-b, which may be regarded as a separate
problem (Noel Associates, Inc. v. Merrill, supra), it has been held
that even though the statute is procedural in nature - a matter not
definitely decided - the Legislature evinced no intent that the
provision should apply to actions pending when it became effective.
Shielcrawt v. Moffett, supra. As to actions instituted after the
effective date of the legislation, the constitutionality of Sec.
61-b is in dispute. See Wolf v. Atkinson (Sup.Ct. 1944) 182 Misc.
675, 49 N.Y.S.(2d) 703 (constitutional); Citron v. Mangel Stores
Corp. (Sup.Ct. 1944) - Misc. - , 50 N.Y.S.(2d) 416
(unconstitutional); Zlinkoff, The American Investor and the
Constitutionality of Section 61-B of the New York General
Corporation Law (1945) 54 Yale L.J. 352.
New Jersey also enacted a statute, similar to Chapters 667 and
668 of the New York law. See P.L. 1945, Ch. 131, R.S.Cum.Supp.
14:3-15. The New Jersey provision similar to Chapter 668 (Sec.
61-b) differs, however, in that it specifically applies
retroactively. It has been held that this provision is procedural
and hence will not govern a pending action brought against a New
Jersey corporation in the New York courts. Shielcrawt v. Moffett
(Sup.Ct.N.Y. 1945) 184 Misc. 1074, 56 N.Y.S.(2d) 134.
See also generally, 2 Moore's Federal Practice (1938) 2250-2253,
and Cum.Supplement Sec. 23.05.
The decisions here discussed show that the question is a
debatable one, and that there is respectable authority for either
view, with a recent trend towards the view that Rule 23(b)(1) is
procedural. There is reason to say that the question is one which
should not be decided by the Supreme Court ex parte, but left to
await a judicial decision in a litigated case, and that in the
light of the material in this note, the only inference to be drawn
from a failure to amend Rule 23(b) would be that the question is
postponed to await a litigated case.
The Advisory Committee is unanimously of the opinion that this
course should be followed.
If, however, the final conclusion is that the rule deals with a
matter of substantive right, then the rule should be amended by
adding a provision that Rule 23(b)(1) does not apply in
jurisdictions where state law permits a shareholder to maintain a
secondary action, although he was not a shareholder at the time of
the transactions of which he complains.
NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT
Difficulties with the original rule. The categories of class
actions in the original rule were defined in terms of the abstract
nature of the rights involved: the so-called "true" category was
defined as involving "joint, common, or secondary rights"; the
"hybrid" category, as involving "several" rights related to
"specific property"; the "spurious" category, as involving
"several" rights affected by a common question and related to
common relief. It was thought that the definitions accurately
described the situations amendable to the class-suit device, and
also would indicate the proper extent of the judgment in each
category, which would in turn help to determine the res judicata
effect of the judgment if questioned in a later action. Thus the
judgments in "true" and "hybrid" class actions would extend to the
class (although in somewhat different ways); the judgment in a
"spurious" class action would extend only to the parties including
intervenors. See Moore, Federal Rules of Civil Procedure: Some
Problems Raised by the Preliminary Draft, 25 Geo.L.J. 551, 570-76
(1937).
In practice, the terms "joint," "common," etc., which were used
as the basis of the Rule 23 classification proved obscure and
uncertain. See Chaffee, Some Problems of Equity 245-46, 256-57
(1950); Kalven & Rosenfield, The Contemporary Function of the Class
Suit, 8 U. of Chi.L.Rev. 684, 707 & n. 73 (1941); Keeffe, Levy &
Donovan, Lee Defeats Ben Hur, 33 Corn.L.Q. 327, 329-36 (1948);
Developments in the Law: Multiparty Litigation in the Federal
Courts, 71 Harv.L.Rev. 874, 931 (1958); Advisory Committee's Note
to Rule 19, as amended. The courts had considerable difficulty with
these terms. See, e.g., Gullo v. Veterans' Coop. H. Assn., 13
F.R.D. 11 (D.D.C. 1952); Shipley v. Pittsburgh & L. E. R. Co., 70
F.Supp. 870 (W.D.Pa. 1947); Deckert v. Independence Shares Corp.,
27 F.Supp. 763 (E.D.Pa. 1939), rev'd, 108 F.2d 51 (3d Cir. 1939),
rev'd, 311 U.S. 282 (1940), on remand, 39 F.Supp. 592 (E.D.Pa.
1941), rev'd sub nom. Pennsylvania Co. for Ins. on Lives v.
Deckert, 123 F.2d 979 (3d Cir. 1941) (see Chafee, supra, at
264-65).
Nor did the rule provide an adequate guide to the proper extent
of the judgments in class actions. First, we find instances of the
courts classifying actions as "true" or intimating that the
judgments would be decisive for the class where these results
seemed appropriate but were reached by dint of depriving the word
"several" of coherent meaning. See, e.g., System Federation No. 91
v. Reed, 180 F.2d 991 (6th Cir. 1950); Wilson v. City of Paducah,
100 F.Supp. 116 (W.D.Ky. 1951); Citizens Banking Co. v. Monticello
State Bank, 143 F.2d 261 (8th Cir. 1944); Redmond v. Commerce Trust
Co., 144 F.2d 140 (8th Cir. 1944), cert. denied, 323 U.S. 776
(1944); United States v. American Optical Co., 97 F.Supp. 66
(N.D.Ill. 1951); National Hairdressers' & C. Assn. v. Philad. Co.,
34 F.Supp. 264 (D.Del. 1940); 41 F.Supp. 701 (D.Del. 1940), aff'd
mem., 129 F.2d 1020 (3d Cir. 1942). Second, we find cases
classified by the courts as "spurious" in which, on a realistic
view, it would seem fitting for the judgments to extend to the
class. See, e.g., Knapp v. Bankers Sec. Corp., 17 F.R.D. 245
(E.D.Pa. 1954); aff'd 230 F.2d 717 (3d Cir. 1956); Giesecke v.
Denver Tramway Corp., 81 F.Supp. 957 (D.Del. 1949); York v.
Guaranty Trust Co., 143 F.2d 503 (2d Cir. 1944), rev'd on grounds
not here relevant, 326 U.S. 90 (1945) (see Chafee, supra, at 208);
cf. Webster Eisenlohr, Inc. v. Kalodner, 145 F.2d 316, 320 (3d Cir.
1944), cert. denied, 325 U.S. 807 (1945). But cf. the early
decisions, Duke of Bedford v. Ellis [1901], A.C. 1; Sheffield
Waterworks v. Yeomans, L.R. 2 Ch.App. 8 (1866); Brown v. Vermuden,
1 Ch.Cas. 272, 22 Eng.Rep. 796 (1676).
The "spurious" action envisaged by original Rule 23 was in any
event an anomaly because, although denominated a "class" action and
pleaded as such, it was supposed not to adjudicate the rights or
liabilities of any person not a party. It was believed to be an
advantage of the "spurious" category that it would invite decisions
that a member of the "class" could, like a member of the class in a
"true" or "hybrid" action, intervene on an ancillary basis without
being required to show an independent basis of Federal
jurisdiction, and have the benefit of the date of the commencement
of the action for purposes of the statute of limitations. See 3
Moore's Federal Practice, pars. 23.10[1], 23.12 (2d ed. 1963).
These results were attained in some instances but not in others. On
the statute of limitations, see Union Carbide & Carbon Corp. v.
Nisley, 300 F.2d 561 (10th Cir. 1961), pet. cert. dism., 371 U.S.
801 (1963); but cf. P. W. Husserl, Inc. v. Newman, 25 F.R.D. 264
(S.D.N.Y. 1960); Athas v. Day, 161 F.Supp. 916 (D.Colo. 1958). On
ancillary intervention, see Amen v. Black, 234 F.2d 12 (10th Cir.
1956), cert. granted, 352 U.S. 888 (1956), dism. on stip., 355 U.S.
600 (1958); but. cf. Wagner v. Kemper, 13 F.R.D. 128 (W.D.Mo.
1952). The results, however, can hardly depend upon the mere
appearance of a "spurious" category in the rule; they should turn
no more basic considerations. See discussion of subdivision (c)(1)
below.
Finally, the original rule did not squarely address itself to the
question of the measures that might be taken during the course of
the action to assure procedural fairness, particularly giving
notice to members of the class, which may in turn be related in
some instances to the extension of the judgment to the class. See
Chafee, supra, at 230-31; Keeffe, Levy & Donovan, supra;
Developments in the Law, supra, 71 Harv.L.Rev. at 937-38; Note,
Binding Effect of Class Actions, 67 Harv.L.Rev. 1059, 1062-65
(1954); Note, Federal Class Actions: A Suggested Revision of Rule
23, 46 Colum.L.Rev. 818, 833-36 (1946); Mich.Gen.Court R. 208.4
(effective Jan. 1, 1963); Idaho R.Civ.P. 23(d); Minn.R.Civ.P.
23.04; N.Dak.R.Civ.P. 23(d).
The amended rule describes in more practical terms the occasions
for maintaining class actions; provides that all class actions
maintained to the end as such will result in judgments including
those whom the court finds to be members of the class, whether or
not the judgment is favorable to the class; and refers to the
measures which can be taken to assure the fair conduct of these
actions.
Subdivision (a) states the prerequisites for maintaining any
class action in terms of the numerousness of the class making
joinder of the members impracticable, the existence of questions
common to the class, and the desired qualifications of the
representative parties. See Weinstein, Revision of Procedure; Some
Problems in Class Actions, 9 Buffalo L.Rev. 433, 458-59 (1960); 2
Barron & Holtzoff, Federal Practice & Procedure Sec. 562, at 265,
Sec. 572, at 351-52 (Wright ed. 1961). These are necessary but not
sufficient conditions for a class action. See, e.g., Giordano v.
Radio Corp. of Am., 183 F.2d 558, 560 (3d Cir. 1950); Zachman v.
Erwin, 186 F.Supp. 681 (S.D.Tex. 1959); Baim & Blank, Inc. v.
Warren Connelly Co., Inc., 19 F.R.D. 108 (S.D.N.Y. 1956).
Subdivision (b) describes the additional elements which in varying
situations justify the use of a class action.
Subdivision (b)(1). The difficulties which would be likely to
arise if resort were had to separate actions by or against the
individual members of the class here furnish the reasons for, and
the principal key to, the propriety and value of utilizing the
class-action device. The considerations stated under clauses (A)
and (B) are comparable to certain of the elements which define the
persons whose joinder in an action is desirable as stated in Rule
19(a), as amended. See amended Rule 19(a)(2)(i) and (ii), and the
Advisory Committee's Note thereto; Hazard, Indispensable Party; The
Historical Origin of a Procedural Phantom, 61 Colum.L.Rev. 1254,
1259-60 (1961); cf. 3 Moore, supra, par. 23.08, at 3435.
Clause (A): One person may have rights against, or be under
duties toward, numerous persons constituting a class, and be so
positioned that conflicting or varying adjudications in lawsuits
with individual members of the class might establish incompatible
standards to govern his conduct. The class action device can be
used effectively to obviate the actual or virtual dilemma which
would thus confront the party opposing the class. The matter has
been stated thus: "The felt necessity for a class action is
greatest when the courts are called upon to order or sanction the
alteration of the status quo in circumstances such that a large
number of persons are in a position to call on a single person to
alter the status quo, or to complain if it is altered, and the
possibility exists that [the] actor might be called upon to act in
inconsistent ways." Louisell & Hazard, Pleading and Procedure;
State and Federal 719 (1962); see Supreme Tribe of Ben-Hur v.
Cauble, 255 U.S. 356, 366-67 (1921). To illustrate: Separate
actions by individuals against a municipality to declare a bond
issue invalid or condition or limit it, to prevent or limit the
making of a particular appropriation or to compel or invalidate an
assessment, might create a risk of inconsistent or varying
determinations. In the same way, individual litigations of the
rights and duties of riparian owners, or of landowners' rights and
duties respecting a claimed nuisance, could create a possibility of
incompatible adjudications. Actions by or against a class provide a
ready and fair means of achieving unitary adjudication. See
Maricopa County Mun. Water Con. Dist. v. Looney, 219 F.2d 529 (9th
Cir. 1955); Rank v. Krug, 142 F.Supp. 1, 154-59 (S.D.Calif. 1956),
on app., State of California v. Rank, 293 F.2d 340, 348 (9th Cir.
1961); Gart v. Cole, 263 F.2d 244 (2d Cir. 1959), cert. denied 359
U.S. 978 (1959); cf. Martinez v. Maverick Cty. Water Con. & Imp.
Dist., 219 F.2d 666 (5th Cir. 1955); 3 Moore, supra, par. 23.11[2],
at 3458-59.
Clause (B): This clause takes in situations where the judgment in
a nonclass action by or against an individual member of the class,
while not technically concluding the other members, might do so as
a practical matter. The vice of an individual actions would lie in
the fact that the other members of the class, thus practically
concluded, would have had no representation in the lawsuit. In an
action by policy holders against a fraternal benefit association
attacking a financial reorganization of the society, it would
hardly have been practical, if indeed it would have been possible,
to confine the effects of a validation of the reorganization to the
individual plaintiffs. Consequently a class action was called for
with adequate representation of all members of the class. See
Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 (1921); Waybright
v. Columbian Mut. Life Ins. Co., 30 F.Supp. 885 (W.D.Tenn. 1939);
cf. Smith v. Swormstedt, 16 How. (57 U.S.) 288 (1853). For much the
same reason actions by shareholders to compel the declaration of a
dividend the proper recognition and handling of redemption or
pre-emption rights, or the like (or actions by the corporation for
corresponding declarations of rights), should ordinarily be
conducted as class actions, although the matter has been much
obscured by the insistence that each shareholder has an individual
claim. See Knapp v. Bankers Securities Corp., 17 F.R.D. 245
(E.D.Pa. 1954), aff'd, 230 F.2d 717 (3d Cir. 1956); Giesecke v.
Denver Tramway Corp., 81 F.Supp. 957 (D.Del. 1949); Zahn v.
Transamerica Corp., 162 F.2d 36 (3d Cir. 1947); Speed v.
Transamerica Corp., 100 F.Supp. 461 (D.Del. 1951); Sobel v.
Whittier Corp., 95 F.Supp. 643 (E.D.Mich. 1951), app. dism., 195
F.2d 361 (6th Cir. 1952); Goldberg v. Whittier Corp., 111 F.Supp.
382 (E.D.Mich. 1953); Dann v. Studebaker-Packard Corp., 288 F.2d
201 (6th Cir. 1961); Edgerton v. Armour & Co.,94 F.Supp. 549
(S.D.Calif. 1950); Ames v. Mengel Co., 190 F.2d 344 (2d Cir. 1951).
(These shareholders' actions are to be distinguished from
derivative actions by shareholders dealt with in new Rule 23.1).
The same reasoning applies to an action which charges a breach of
trust by an indenture trustee or other fiduciary similarly
affecting the members of a large class of security holders or other
beneficiaries, and which requires an accounting or like measures to
restore the subject of the trust. See Bosenberg v. Chicago T. & T.
Co., 128 F.2d 245 (7th Cir. 1942); Citizens Banking Co. v.
Monticello State Bank, 143 F.2d 261 (8th Cir. 1944); Redmond v.
Commerce Trust Co., 144 F.2d 140 (8th Cir. 1944), cert. denied, 323
U.S. 776 (1944); cf. York v. Guaranty Trust Co., 143 F.2d 503 (2d
Cir. 1944), rev'd on grounds not here relevant, 326 U.S. 99 (1945).
In various situations an adjudication as to one or more members
of the class will necessarily or probably have an adverse practical
effect on the interests of other members who should therefore be
represented in the lawsuit. This is plainly the case when claims
are made by numerous persons against a fund insufficient to satisfy
all claims. A class action by or against representative members to
settle the validity of the claims as a whole, or in groups,
followed by separate proof of the amount of each valid claim and
proportionate distribution of the fund, meets the problem. Cf.
Dickinson v. Burnham, 197 F.2d 973 (2d Cir. 1952), cert. denied,
344 U.S. 875 (1952); 3 Moore, supra, at par. 23.09. The same
reasoning applies to an action by a creditor to set aside a
fraudulent conveyance by the debtor and to appropriate the property
to his claim, when the debtor's assets are insufficient to pay all
creditors' claims. See Hefferman v. Bennett & Armour, 110
Cal.App.2d 564, 243 P.2d 846 (1952); cf. City & County of San
Francisco v. Market Street Ry., 95 Cal.App.2d 648, 213 P.2d 780
(1950). Similar problems, however, can arise in the absence of a
fund either present or potential. A negative or mandatory
injunction secured by one of a numerous class may disable the
opposing party from performing claimed duties toward the other
members of the class or materially affect his ability to do so. An
adjudication as to movie "clearances and runs" nominally affecting
only one exhibitor would often have practical effects on all the
exhibitors in the same territorial area. Cf. United States v.
Paramount Pictures, Inc., 66 F.Supp. 323, 341-46 (S.D.N.Y. 1946);
334 U.S. 131, 144-48 (1948). Assuming a sufficiently numerous class
of exhibitors, a class action would be advisable. (Here
representation of subclasses of exhibitors could become necessary;
see subdivision (c)(3)(B).)
Subdivision (b)(2). This subdivision is intended to reach
situations where a party has taken action or refused to take action
with respect to a class, and final relief of an injunctive nature
or of a corresponding declaratory nature, settling the legality of
the behavior with respect to the class as a whole, is appropriate.
Declaratory relief "corresponds" to injunctive relief when as a
practical matter it affords injunctive relief or serves as a basis
for later injunctive relief. The subdivision does not extend to
cases in which the appropriate final relief relates exclusively or
predominantly to money damages. Action or inaction is directed to a
class within the meaning of this subdivision even if it has taken
effect or is threatened only as to one or a few members of the
class, provided it is based on grounds which have general
application to the class.
Illustrative are various actions in the civil-rights field where
a party is charged with discriminating unlawfully against a class,
usually one whose members are incapable of specific enumeration.
See Potts v. Flax, 313 F.2d 284 (5th Cir. 1963); Bailey v.
Patterson, 323 F.2d 201 (5th Cir. 1963), cert. denied, 377 U.S. 972
(1964); Brunson v. Board of Trustees of School District No. 1,
Clarendon City, S.C., 311 F.2d 107 (4th Cir. 1962), cert. denied,
373 U.S. 933 (1963); Green v. School Bd. of Roanoke, Va., 304 F.2d
118 (4th Cir. 1962); Orleans Parish School Bd. v. Bush, 242 F.2d
156 (5th Cir. 1957), cert. denied, 354 U.S. 921 (1957); Mannings v.
Board of Public Inst. of Hillsborough County, Fla., 277 F.2d 370
(5th Cir. 1960); Northcross v. Board of Ed. of City of Memphis, 302
F.2d 818 (6th Cir. 1962), cert. denied 370 U.S. 944 (1962); Frasier
v. Board of Trustees of Univ. of N.C., 134 F.Supp. 589 (M.D.N.C.
1955, 3-judge court), aff'd, 350 U.S. 979 (1956). Subdivision
(b)(2) is not limited to civil-rights cases. Thus an action looking
to specific or declaratory relief could be brought by a numerous
class of purchasers, say retailers of a given description, against
a seller alleged to have undertaken to sell to that class at prices
higher than those set for other purchasers, say retailers of
another description, when the applicable law forbids such a pricing
differential. So also a patentee of a machine, charged with selling
or licensing the machine on condition that purchasers or licensees
also purchase or obtain licenses to use an ancillary unpatented
machine, could be sued on a class basis by a numerous group of
purchasers or licensees, or by a numerous group of competing
sellers or licensors of the unpatented machine, to test the
legality of the "tying" condition.
Subdivision (b)(3). In the situations to which this subdivision
relates, class-action treatment is not as clearly called for as in
those described above, but it may nevertheless be convenient and
desirable depending upon the particular facts. Subdivision (b)(3)
encompasses those cases in which a class action would achieve
economies of time, effort, and expense, and promote, uniformity of
decision as to persons similarly situated, without sacrificing
procedural fairness or bringing about other undesirable results.
Cf. Chafee, supra, at 201.
The court is required to find, as a condition of holding that a
class action may be maintained under this subdivision, that the
questions common to the class predominate over the questions
affecting individual members. It is only where this predominance
exists that economies can be achieved by means of the class-action
device. In this view, a fraud perpetrated on numerous persons by
the use of similar misrepresentations may be an appealing situation
for a class action, and it may remain so despite the need, if
liability is found, for separate determination of the damages
suffered by individuals within the class. On the other hand,
although having some common core, a fraud case may be unsuited for
treatment as a class action if there was material variation in the
representation made or in the kinds or degrees of reliance by the
persons to whom they were addressed. See Oppenheimer v. F. J. Young
& Co., Inc., 144 F.2d 387 (2d Cir. 1944); Miller v. National City
Bank of N.Y., 166 F.2d 723 (2d Cir. 1948); and for like problems in
other contexts, see Hughes v. Encyclopaedia Brittanica, 199 F.2d
295 (7th Cir. 1952); Sturgeon v. Great Lakes Steel Corp., 143 F.2d
819 (6th Cir. 1944). A "mass accident" resulting in injuries to
numerous persons is ordinarily not appropriate for a class action
because of the likelihood that significant questions, not only of
damages but of liability and defenses of liability, would be
present, affecting the individuals in different ways. In these
circumstances an action conducted nominally as a class action would
degenerate in practice into multiple lawsuits separately tried. See
Pennsylvania R.R. v. United States, 111 F.Supp. 80 (D.N.J. 1953);
cf. Weinstein, supra, 9 Buffalo L.Rev. at 469. Private damage
claims by numerous individuals arising out of concerted antitrust
violations may or may not involve predominating common questions.
See Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir.
1961), pet. cert. dism., 371 U.S. 801 (1963); cf. Weeks v. Bareco
Oil Co., 125 F.2d 84 (7th Cir. 1941); Kainz v. Anheuser-Busch,
Inc., 194 F.2d 737 (7th Cir. 1952); Hess v. Anderson, Clayton &
Co., 20 F.R.D. 466 (S.D.Calif. 1957).
That common questions predominate is not itself sufficient to
justify a class action under subdivision (b)(3), for another method
of handling the litigious situation may be available which has
greater practical advantages. Thus one or more actions agreed to by
the parties as test or model actions may be preferable to a class
action; or it may prove feasible and preferable to consolidate
actions. Cf. Weinstein, supra, 9 Buffalo L.Rev. at 438-54. Even
when a number of separate actions are proceeding simultaneously,
experience shows that the burdens on the parties and the courts can
sometimes be reduced by arrangements for avoiding repetitious
discovery or the like. Currently the Coordinating Committee on
Multiple Litigation in the United States District Courts (a
subcommittee of the Committee on Trial Practice and Technique of
the Judicial Conference of the United States) is charged with
developing methods for expediting such massive litigation. To
reinforce the point that the court with the aid of the parties
ought to assess the relative advantages of alternative procedures
for handling the total controversy, subdivision (b)(3) requires, as
a further condition of maintaining the class action, that the court
shall find that that procedure is "superior" to the others in the
particular circumstances.
Factors (A)-(D) are listed, non-exhaustively, as pertinent to the
findings. The court is to consider the interests of individual
members of the class in controlling their own litigations and
carrying them on as they see fit. See Weeks v. Bareco Oil Co., 125
F.2d 84, 88-90, 93-94 (7th Cir. 1941) (anti-trust action); see also
Pentland v. Dravo Corp., 152 F.2d 851 (3d Cir. 1945), and Chaffee,
supra, at 273-75, regarding policy of Fair Labor Standards Act of
1938, Sec. 16(b), 29 U.S.C. Sec. 216(b), prior to amendment by
Portal-to-Portal Act of 1947, Sec. 5(a). [The present provisions of
29 U.S.C. Sec. 216(b) are not intended to be affected by Rule 23,
as amended.]
In this connection the court should inform itself of any
litigation actually pending by or against the individuals. The
interests of individuals in conducting separate lawsuits may be so
strong as to call for denial of a class action. On the other hand,
these interests may be theoretic rather than practical; the class
may have a high degree of cohesion and prosecution of the action
through representatives would be quite unobjectionable, or the
amounts at stake for individuals may be so small that separate
suits would be impracticable. The burden that separate suits would
impose on the party opposing the class, or upon the court
calendars, may also fairly be considered. (See the discussion,
under subdivision (c)(2) below, of the right of members to be
excluded from the class upon their request.)
Also pertinent is the question of the desirability of
concentrating the trial of the claims in the particular forum by
means of a class action, in contrast to allowing the claims to be
litigated separately in forums to which they would ordinarily be
brought. Finally, the court should consider the problems of
management which are likely to arise in the conduct of a class
action.
Subdivision (c)(1). In order to give clear definition to the
action, this provision requires the court to determine, as early in
the proceedings as may be practicable, whether an action brought as
a class action is to be so maintained. The determination depends in
each case on satisfaction of the terms of subdivision (a) and the
relevant provisions of subdivision (b).
An order embodying a determination can be conditional; the court
may rule, for example, that a class action may be maintained only
if the representation is improved through intervention of
additional parties of a stated type. A determination once made can
be altered or amended before the decision on the merits if, upon
fuller development of the facts, the original determination appears
unsound. A negative determination means that the action should be
stripped of its character as a class action. See subdivision
(d)(4). Although an action thus becomes a nonclass action, the
court may still be receptive to interventions before the decision
on the merits so that the litigation may cover as many interests as
can be conveniently handled; the questions whether the intervenors
in the nonclass action shall be permitted to claim "ancillary"
jurisdiction or the benefit of the date of the commencement of the
action for purposes of the statute of limitations are to be decided
by reference to the laws governing jurisdiction and limitations as
they apply in particular contexts.
Whether the court should require notice to be given to members of
the class of its intention to make a determination, or of the order
embodying it, is left to the court's discretion under subdivision
(d)(2).
Subdivision (c)(2) makes special provision for class actions
maintained under subdivision (b)(3). As noted in the discussion of
the latter subdivision, the interests of the individuals in
pursuing their own litigations may be so strong here as to warrant
denial of a class action altogether. Even when a class action is
maintained under subdivision (b)(3), this individual interest is
respected. Thus the court is required to direct notice to the
members of the class of the right of each member to be excluded
from the class upon his request. A member who does not request
exclusion may, if he wishes, enter an appearance in the action
through his counsel; whether or not he does so, the judgment in the
action will embrace him.
The notice setting forth the alternatives open to the members of
the class, is to be the best practicable under the circumstances,
and shall include individual notice to the members who can be
identified through reasonable effort. (For further discussion of
this notice, see the statement under subdivision (d)(2) below.)
Subdivision (c)(3). The judgment in a class action maintained as
such to the end will embrace the class, that is, in a class action
under subdivision (b)(1) or (b)(2), those found by the court to be
class members; in a class action under subdivision (b)(3), those to
whom the notice prescribed by subdivision (c)(2) was directed,
excepting those who requested exclusion or who are ultimately found
by the court not to be members of the class. The judgment has this
scope whether it is favorable or unfavorable to the class. In a
(b)(1) or (b)(2) action the judgment "describes" the members of the
class, but need not specify the individual members; in a (b)(3)
action the judgment "specifies" the individual members who have
been identified and described the others.
Compare subdivision (c)(4) as to actions conducted as class
actions only with respect to particular issues. Where the
class-action character of the lawsuit is based solely on the
existence of a "limited fund," the judgment, while extending to all
claims of class members against the fund, has ordinarily left
unaffected the personal claims of nonappearing members against the
debtor. See 3 Moore, supra, par. 23.11[4].
Hitherto, in a few actions conducted as "spurious" class actions
and thus nominally designed to extend only to parties and others
intervening before the determination of liability, courts have held
or intimated that class members might be permitted to intervene
after a decision on the merits favorable to their interests, in
order to secure the benefits of the decision for themselves,
although they would presumably be unaffected by an unfavorable
decision. See, as to the propriety of this so-called "one-way"
intervention in "spurious" actions, the conflicting views expressed
in Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir.
1961), pet. cert. dism., 371 U.S. 801 (1963); York v. Guaranty
Trust Co., 143 F.2d 503, 529 (2d Cir. 1944), rev'd on grounds not
here relevant, 326 U.S. 99 (1945); Pentland v. Dravo Corp., 152
F.2d 851, 856 (3d Cir. 1945); Speed v. Transamerica Corp., 100
F.Supp. 461, 463 (D.Del. 1951); State Wholesale Grocers v. Great
Atl. & Pac. Tea Co., 24 F.R.D. 510 (N.D.Ill. 1959); Alabama Ind.
Serv. Stat. Assn. v. Shell Pet Corp., 28 F.Supp. 386, 390 (N.D.Ala.
1939); Tolliver v. Cudahy Packing Co., 39 F.Supp. 337, 339
(E.D.Tenn. 1941); Kalven & Rosenfield, supra, 8 U. of Chi.L.Rev.
684 (1941); Comment, 53 Nw.U.L.Rev. 627, 632-33 (1958);
Developments in the Law, supra, 71 Harv.L.Rev. at 935; 2 Barron &
Holtzoff, supra, Sec. 568; but cf. Lockwood v. Hercules Powder Co.,
7 F.R.D. 24, 28-29 (W.D.Mo. 1947); Abram v. San Joaquin Cotton Oil
Co., 46 F.Supp. 969, 976-77 (S.D.Calif. 1942); Chaffee, supra, at
280, 285; 3 Moore, supra, par. 23.12, at 3476. Under proposed
subdivision (c)(3), one-way intervention is excluded; the action
will have been early determined to be a class or nonclass action,
and in the former case the judgment, whether or not favorable, will
include the class, as above stated.
Although thus declaring that the judgment in a class action
includes the class, as defined, subdivision (c)(3) does not disturb
the recognized principle that the court conducting the action
cannot predetermine the res judicata effect of the judgment; this
can be tested only in a subsequent action. See Restatement,
Judgments Sec. 86, comment (h), Sec. 116 (1942). The court,
however, in framing the judgment in any suit brought as a class
action, must decide what its extent or coverage shall be, and if
the matter is carefully considered, questions of res judicata are
less likely to be raised at a later time and if raised will be more
satisfactorily answered. See Chafee, supra, at 294; Weinstein,
supra, 9 Buffalo L.Rev. at 460.
Subdivision (c)(4). This provision recognizes that an action may
be maintained as a class action as to particular issues only. For
example, in a fraud or similar case the action may retain its
"class" character only through the adjudication of liability to the
class; the members of the class may thereafter be required to come
in individually and prove the amounts of their respective claims.
Two or more classes may be represented in a single action. Where
a class is found to include subclasses divergent in interest, the
class may be divided correspondingly, and each subclass treated as
a class.
Subdivision (d) is concerned with the fair and efficient conduct
of the action and lists some types of orders which may be
appropriate.
The court should consider how the proceedings are to be arranged
in sequence, and what measures should be taken to simplify the
proof and argument. See subdivision (d)(1). The orders resulting
from this consideration, like the others referred to in subdivision
(d), may be combined with a pretrial order under Rule 16, and are
subject to modification as the case proceeds.
Subdivision (d)(2) sets out a non-exhaustive list of possible
occasions for orders requiring notice to the class. Such notice is
not a novel conception. For example, in "limited fund" cases,
members of the class have been notified to present individual
claims after the basic class decision. Notice has gone to members
of a class so that they might express any opposition to the
representation, see United States v. American Optical Co., 97
F.Supp. 66 (N.D.Ill. 1951), and 1950-51 CCH Trade Cases 64573-74
(par. 62869); cf. Weeks v. Bareco Oil Co., 125 F.2d 84, 94 (7th
Cir. 1941), and notice may encourage interventions to improve the
representation of the class. Cf. Oppenheimer v. F. J. Young & Co.,
144 F.2d 387 (2d Cir. 1944). Notice has been used to poll members
on a proposed modification of a consent decree. See record in Sam
Fox Publishing Co. v. United States, 366 U.S. 683 (1961).
Subdivision (d)(2) does not require notice at any stage, but
rather calls attention to its availability and invokes the court's
discretion. In the degree that there is cohesiveness or unity in
the class and the representation is effective, the need for notice
to the class will tend toward a minimum. These indicators suggest
that notice under subdivision (d)(2) may be particularly useful and
advisable in certain class actions maintained under subdivision
(b)(3), for example, to permit members of the class to object to
the representation. Indeed, under subdivision (c)(2), notice must
be ordered, and is not merely discretionary, to give the members in
a subdivision (b)(3) class action an opportunity to secure
exclusion from the class. This mandatory notice pursuant to
subdivision (c)(2), together with any discretionary notice which
the court may find it advisable to give under subdivision (d)(2),
is designed to fulfill requirements of due process to which the
class action procedure is of course subject. See Hansberry v. Lee,
311 U.S. 32 (1940); Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306 (1950); cf. Dickinson v. Burnham, 197 F.2d 973, 979
(2d Cir. 1952), and studies cited at 979 n. 4; see also All
American Airways, Inc. v. Elderd, 209 F.2d 247, 249 (2d Cir. 1954);
Gart v. Cole, 263 F.2d 244, 248-49 (2d Cir. 1959), cert. denied,
359 U.S. 978 (1959).
Notice to members of the class, whenever employed under amended
Rule 23, should be accommodated to the particular purpose but need
not comply with the formalities for service of process. See Chafee,
supra, at 230-31; Brendle v. Smith, 7 F.R.D. 119 (S.D.N.Y. 1946).
The fact that notice is given at one stage of the action does not
mean that it must be given at subsequent stages. Notice is
available fundamentally "for the protection of the members of the
class or otherwise for the fair conduct of the action" and should
not be used merely as a device for the undesirable solicitation of
claims. See the discussion in Cherner v. Transitron Electronic
Corp., 201 F.Supp. 934 (D.Mass. 1962); Hormel v. United States, 17
F.R.D. 303 (S.D.N.Y. 1955).
In appropriate cases the court should notify interested
government agencies of the pendency of the action or of particular
steps therein.
Subdivision (d)(3) reflects the possibility of conditioning the
maintenance of a class action, e.g., on the strengthening of the
representation, see subdivision (c)(1) above; and recognizes that
the imposition of conditions on intervenors may be required for the
proper and efficient conduct of the action.
As to orders under subdivision (d)(4), see subdivision (c)(1)
above.
Subdivision (e) requires approval of the court, after notice, for
the dismissal or compromise of any class action.
NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT
The amendments are technical. No substantive change is intended.
COMMITTEE NOTES ON RULES - 1998 AMENDMENT
Subdivision (f). This permissive interlocutory appeal provision
is adopted under the power conferred by 28 U.S.C. Sec. 1292(e).
Appeal from an order granting or denying class certification is
permitted in the sole discretion of the court of appeals. No other
type of Rule 23 order is covered by this provision. The court of
appeals is given unfettered discretion whether to permit the
appeal, akin to the discretion exercised by the Supreme Court in
acting on a petition for certiorari. This discretion suggests an
analogy to the provision in 28 U.S.C. Sec. 1292(b) for permissive
appeal on certification by a district court. Subdivision (f),
however, departs from the Sec. 1292(b) model in two significant
ways. It does not require that the district court certify the
certification ruling for appeal, although the district court often
can assist the parties and court of appeals by offering advice on
the desirability of appeal. And it does not include the potentially
limiting requirements of Sec. 1292(b) that the district court order
"involve[] a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate
termination of the litigation."
The courts of appeals will develop standards for granting review
that reflect the changing areas of uncertainty in class litigation.
The Federal Judicial Center study supports the view that many suits
with class-action allegations present familiar and almost routine
issues that are no more worthy of immediate appeal than many other
interlocutory rulings. Yet several concerns justify expansion of
present opportunities to appeal. An order denying certification may
confront the plaintiff with a situation in which the only sure path
to appellate review is by proceeding to final judgment on the
merits of an individual claim that, standing alone, is far smaller
than the costs of litigation. An order granting certification, on
the other hand, may force a defendant to settle rather than incur
the costs of defending a class action and run the risk of
potentially ruinous liability. These concerns can be met at low
cost by establishing in the court of appeals a discretionary power
to grant interlocutory review in cases that show appeal-worthy
certification issues.
Permission to appeal may be granted or denied on the basis of any
consideration that the court of appeals finds persuasive.
Permission is most likely to be granted when the certification
decision turns on a novel or unsettled question of law, or when, as
a practical matter, the decision on certification is likely
dispositive of the litigation.
The district court, having worked through the certification
decision, often will be able to provide cogent advice on the
factors that bear on the decision whether to permit appeal. This
advice can be particularly valuable if the certification decision
is tentative. Even as to a firm certification decision, a statement
of reasons bearing on the probable benefits and costs of immediate
appeal can help focus the court of appeals decision, and may
persuade the disappointed party that an attempt to appeal would be
fruitless.
The 10-day period for seeking permission to appeal is designed to
reduce the risk that attempted appeals will disrupt continuing
proceedings. It is expected that the courts of appeals will act
quickly in making the preliminary determination whether to permit
appeal. Permission to appeal does not stay trial court proceedings.
A stay should be sought first from the trial court. If the trial
court refuses a stay, its action and any explanation of its views
should weigh heavily with the court of appeals.
Appellate Rule 5 has been modified to establish the procedure for
petitioning for leave to appeal under subdivision (f).
Changes Made after Publication (GAP Report). No changes were made
in the text of Rule 23(f) as published.
Several changes were made in the published Committee Note. (1)
References to 28 U.S.C. Sec. 1292(b) interlocutory appeals were
revised to dispel any implication that the restrictive elements of
Sec. 1292(b) should be read in to Rule 23(f). New emphasis was
placed on court of appeals discretion by making explicit the
analogy to certiorari discretion. (2) Suggestions that the new
procedure is a "modest" expansion of appeal opportunities, to be
applied with "restraint," and that permission "almost always will
be denied when the certification decision turns on case-specific
matters of fact and district court discretion," were deleted. It
was thought better simply to observe that courts of appeals will
develop standards "that reflect the changing areas of uncertainty
in class litigation."
-End-
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| Enviado por: | El remitente no desea revelar su nombre |
| Idioma: | inglés |
| País: | Estados Unidos |
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