Federal Rules of Civil Procedure

 WITH FORMS

 DECEMBER 1, 2011

 Printed for the use of

THE COMMITTEE ON THE JUDICIARY HOUSE OF  REPRESENTATIVES

U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 2011

COMMITTEE ON THE JUDICIARY

ONE  HUNDRED TWELFTH CONGRESS

LAMAR SMITH, Texas, Chairman

F. JAMES SENSENBRENNER, JR., Wisconsin

HOWARD COBLE, North Carolina ELTON GALLEGLY, California BOB  GOODLATTE, Virginia DANIEL E. LUNGREN, California STEVE CHABOT, Ohio

DARRELL E. ISSA, California

MIKE PENCE, Indiana

J. RANDY FORBES, Virginia

STEVE KING, Iowa TRENT FRANKS, Arizona LOUIE GOHMERT, Texas JIM JORDAN, Ohio

TED POE, Texas

JASON CHAFFETZ, Utah TIM GRIFFIN, Arkansas TOM MARINO, Pennsylvania

TREY GOWDY, South Carolina

DENNIS ROSS, Florida SANDY ADAMS, Florida BEN QUAYLE, Arizona MARK AMODEI, Nevada

JOHN CONYERS, JR., Michigan HOWARD L. BERMAN, California JERROLD NADLER, New York ROBERT C. ‘‘BOBBY’’ SCOTT,  Virginia MELVIN L. WATT, North Carolina

ZOE LOFGREN, California SHEILA JACKSON LEE, Texas MAXINE WATERS, California STEVE COHEN, Tennessee

HENRY C. ‘‘HANK’’ JOHNSON,  JR., Georgia

PEDRO R. PIERLUISI, Puerto Rico

MIKE QUIGLEY, Illinois JUDY CHU, California TED DEUTCH, Florida

LINDA T. SA´ NCHEZ, California

[Vacant]

SEAN MCLAUGHLIN, Majority Chief of  Staff and General Counsel

PERRY APELBAUM, Minority Staff Director and Chief Counsel

(II)

FOREWORD

This document contains the Federal Rules of  Civil Procedure to- gether with forms, as amended to December 1, 2011. The rules and forms have been promulgated and amended by the United States Supreme Court pursuant  to law, and further  amended by Acts of Congress. This document has been prepared by the Committee in response to the need for an official up-to-date document contain- ing the latest amendments to the rules.

For the convenience of  the user, where a rule has been amended a reference to the date the amendment was promulgated and the date the amendment became effective follows the text of  the rule. The Committee on Rules of  Practice and Procedure and the Ad- visory Committee on the Federal Rules of  Civil Procedure, Judi- cial Conference of  the  United States,  prepared notes explaining the purpose and intent of  the amendments to the rules. The Com- mittee  Notes may be   found in the Appendix to Title 28,  United

States Code, following the particular rule to which they relate.

DECEMBER 1, 2011.

Chairman, Committee on  the Judiciary.

(III)

AUTHORITY FOR  PROMULGATION OF RULES

TITLE 28,  UNITED STATES CODE

§ 2072. Rules of procedure and evidence; power to  prescribe

(a) The Supreme Court shall have the power to prescribe general rules of  practice and procedure and rules of  evidence for cases in the  United States  district  courts  (including proceedings before magistrate judges thereof) and courts of  appeals.

(b)   Such  rules  shall  not  abridge,  enlarge  or  modify  any  sub-

stantive  right. All laws in conflict with such rules shall be  of  no further force or effect after such rules have taken effect.

(c)   Such rules may define when a ruling of  a district  court is

final for the purposes of  appeal under section 1291 of  this title.

(Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4648, eff. Dec. 1,  1988; amended Pub. L. 101–650,  title III, §§ 315,  321,  Dec.

1, 1990, 104 Stat. 5115, 5117.)

§ 2073. Rules of procedure and evidence; method of prescribing

(a)(1) The Judicial  Conference shall  prescribe  and publish the procedures for the consideration of  proposed rules under this sec- tion.

(2)  The Judicial  Conference may authorize the appointment of

committees to assist the Conference by recommending rules to be prescribed under sections  2072  and 2075  of   this title.  Each such committee shall consist of  members of  the bench and the profes- sional bar, and trial and appellate judges.

(b)  The Judicial Conference shall authorize the appointment of

a standing committee on rules of   practice,  procedure, and evi- dence under subsection (a) of  this section. Such standing commit- tee shall review each recommendation of  any other committees so appointed and  recommend to  the  Judicial  Conference rules  of practice,  procedure, and evidence and such changes in rules pro- posed by a committee  appointed  under  subsection  (a)(2) of   this section as may be  necessary to maintain consistency and other- wise promote the interest of  justice.

(c)(1) Each meeting for the transaction  of  business under this

chapter by any committee appointed under this section shall be open to  the  public, except when the  committee so   meeting, in open session and with a majority present, determines that it is in the public interest that all or part of  the remainder of  the meet- ing on that day shall be  closed to the public, and states the reason for so  closing the meeting. Minutes of  each meeting for the trans- action of  business under this chapter shall be  maintained by the committee and made available to the public, except that any por- tion of  such minutes, relating to a closed meeting and made avail- able to the public, may contain such deletions as may be   nec- essary to avoid frustrating the purposes of  closing the meeting.

(V)

(2) Any meeting for the transaction of  business under this chap- ter,  by a committee appointed under this section, shall be   pre- ceded by sufficient notice to enable all interested  persons to at- tend.

(d)   In making a recommendation under this  section or under section 2072 or 2075,  the body making that  recommendation shall provide a proposed rule, an explanatory note on the rule, and a written report explaining the body’s action, including any minor- ity or other separate views.

(e)  Failure to comply with this section does not invalidate a rule prescribed under section 2072 or 2075 of  this title.

(Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649, eff. Dec. 1,  1988;  amended Pub. L. 103–394,  title I, § 104(e), Oct.  22,

1994, 108 Stat. 4110.)

§ 2074. Rules  of  procedure and evidence; submission to  Congress;

effective date

(a) The Supreme Court shall transmit to the Congress not later than May 1 of  the year in which a rule prescribed under section

2072 is to become effective a copy of  the proposed rule. Such rule shall take effect no earlier than December 1 of  the year in which such rule is so  transmitted unless otherwise provided by law. The Supreme Court may fix the extent such rule shall apply to pro- ceedings then pending, except that  the Supreme Court shall not require the application of  such rule to further proceedings then pending to the extent that, in the opinion of  the court in which such proceedings are pending, the application of  such rule in such proceedings would not  be   feasible or would work injustice, in which event the former rule applies.

(b)   Any such rule  creating,  abolishing,  or  modifying an  evi- dentiary privilege shall have no force or effect unless approved by Act of  Congress.

(Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649, eff. Dec. 1, 1988.)

HISTORICAL NOTE

The Supreme Court prescribes rules of  civil procedure for the district courts pursuant to section 2072 of  Title 28,  United States Code, as enacted  by Title  IV   ‘‘Rules Enabling  Act’’ of   Pub. L.

100–702 (approved Nov. 19,  1988,  102 Stat. 4648),  effective December

1,  1988.  Pursuant to section 2074  of  Title 28,  the Supreme Court transmits to Congress (not later than May 1 of  the year in which a rule prescribed under section 2072 is to become effective) a copy of  the proposed rule. The rule takes effect no earlier than Decem- ber 1 of  the year in which the rule is transmitted unless otherwise provided by law.

By   act of  June 19,  1934,  ch. 651,  48  Stat. 1064  (subsequently 28

United States  Code, § 2072),  the Supreme Court was authorized to prescribe general rules of  civil procedure for the district courts. The rules, and subsequent amendments, were not to take  effect until (1)  they had been first reported to Congress by the Attorney General at  the beginning of   a regular  session and (2)  after the close of  that session.

Under a 1949 amendment to 28 U.S.C., § 2072, the Chief Justice of

the United States, instead of  the Attorney General, reported the rules to Congress. In 1950,  section 2072  was further  amended so that amendments to the rules could be  reported to Congress not later  than May 1  each year  and become effective 90  days after being reported.  Effective December 1,  1988,  section 2072  was re- pealed and supplanted by new sections 2072 and 2074, see first para- graph of  Historical Note above.

The original rules, pursuant to act of  June 19, 1934, were adopted

by order of  the Court on December 20,  1937,  transmitted to Con- gress by the Attorney General on January  3,  1938, and became ef- fective September 16,  1938 (308  U.S. 645;  Cong. Rec., vol. 83,  pt.  1, p. 13, Exec. Comm. 905; H.  Doc. 460 and H.  Doc. 588, 75th Cong.)

Rule  81(a)(6) was abrogated by order of  the  Court on December

28, 1939, transmitted to Congress by the Attorney General on Jan- uary 3, 1940, effective April 3, 1941 (308 U.S. 642; Cong. Rec., vol. 86, pt. 1, p. 14, Exec. Comm. 1152).

Further amendments were adopted by the Court by order dated

December 27,  1946,  transmitted to Congress by the Attorney  Gen- eral on January  3,  1947,  and became effective March 19,  1948  (329

U.S. 839;  Cong. Rec., vol. 93,  pt. 1,  p. 41,  Exec. Comm. 32;  H.  Doc.

46 and H.  Doc. 473, 80th Cong.). The amendments  affected Rules 6,

7,  12,  13,  14,  17,  24,  26,  27,  28,  33,  34,  36,  41,  45,  52,  54,  56,  58,  59,  60,

62,  65,  66,  68,  73,  75,  77,  79,  81,  84,  and 86,  and Forms 17,  20,  22,  and

25.

Additional  amendments  were adopted by the  Court  by order

dated December 29, 1948, transmitted to Congress by the Attorney General on January  3,  1949,  and became effective October 20,  1949 (335  U.S. 919;  Cong. Rec., vol. 95,  pt. 1,  p. 94,  Exec. Comm. 24;  H.

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Doc. 33,  81st Cong.). The amendments  affected Rules 1,  17,  22,  24,

25,  27,  37,  45,  57,  60,  62,  65,  66,  67,  69,  72,  73,  74,  75,  76,  79,  81,  82,  and

86, and Forms 1, 19, 22, 23, and 27.

Amendment to Rule 81(a)(7) and new Rule 71A and Forms 28 and

29 were adopted by the Court by order dated April 30,  1951,  trans- mitted to Congress on May 1, 1951, and became effective August 1,

1951 (341  U.S. 959;  Cong. Rec., vol. 97,  pt. 4,  p. 4666,  Exec. Comm.

414; H.  Doc. 121, 82d Cong.).

Additional  amendments  were adopted by the  Court  by order

dated April 17,  1961, transmitted to Congress by the Chief Justice on April 18,  1961, and became effective July 19,  1961 (368 U.S.  1009; Cong. Rec., vol. 107,  pt. 5,  p. 6524,  Exec. Comm. 821).  The amend- ments affected Rules 25, 54, 62, and 86, and Forms 2 and 19.

Additional  amendments  were adopted by the  Court  by order

dated January 21, 1963, transmitted to Congress by the Chief Jus- tice (374  U.S. 861; Cong. Rec., vol. 109,  pt. 1,  p. 1037,  Exec. Comm.

267;  H.  Doc. 48,  88th Cong.), and became effective July  1,  1963,  by order of  the Court dated March 18,  1963 (374  U.S. 861;  Cong. Rec., vol. 109, pt. 4, p. 4639, Exec. Comm. 569; H.  Doc. 48, pt. 2, 88th Cong.; see also H.  Doc. 67, 88th Cong.). The amendments  affected Rules 4,

5, 6, 7, 12, 13, 14, 15, 24, 25, 26, 28, 30, 41, 49, 50, 52, 56, 58, 71A,  77, 79,

81, and 86, and Forms 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 18, 21, 22–A, and 22–B,  and added Forms 30, 31, and 32.

Additional  amendments  were adopted by the  Court  by order

dated February 28, 1966, transmitted to Congress by the Chief Jus- tice on the same day (383  U.S. 1029;  Cong. Rec., vol. 112,  pt. 4,  p.

4229, Exec. Comm. 2094; H.  Doc. 391, 89th Cong.), and became effec- tive July 1,  1966.  The amendments affected Rules 1,  4,  8,  9,  12,  13,

14,  15,  17,  18,  19,  20,  23,  24,  26,  38,  41,  42,  43,  44,  47,  53,  59,  65,  68,  73,

74,  75,  81,  and 82,  and Forms 2 and 15,  and added Rules 23.1,  23.2,

44.1,  and 65.1,  and Supplementary Rules A,  B,  C,  D,  E, and F for certain Admiralty and Maritime claims. The amendments govern all proceedings in actions brought after they became effective and also all further proceedings in actions then pending, except to the extent that  in the opinion of  the Court an application in a par- ticular action then pending would not be  feasible or would work injustice, in which event the former procedure applies.

In addition, Rule 6(c)   of  the Rules of  Civil Procedure promul-

gated by the Court on December 20,  1937,  effective  September  16,

1938; Rule 2 of  the Rules for Practice and Procedure under section

25  of  an act to amend and consolidate the acts respecting copy- right, approved March 4,  1909,  promulgated by the Court on June

1,  1909,  effective July 1,  1909;  and the Rules of  Practice  in Admi- ralty and Maritime Cases, promulgated by the Court on December

6,  1920,  effective March 7,  1921,  as revised, amended and supple- mented, were rescinded, effective July 1, 1966.

Additional  amendments  were adopted by the  Court  by order

dated December 4, 1967, transmitted to Congress by the Chief Jus- tice on January 15,  1968 (389  U.S. 1121;  Cong. Rec., vol. 114,  pt.  1, p. 113,  Exec. Comm. 1361; H.  Doc. 204,  90th Cong.), and became ef- fective July  1,  1968.  The  amendments  affected  Rules  6(b), 9(h),

41(a)(1), 77(d), 81(a), and abrogated the chapter heading ‘‘IX.   Ap- peals’’ and Rules 72–76, and Form 27.

Additional  amendments  were adopted by the  Court  by order

dated March 30, 1970, transmitted to Congress by the Chief Justice

on the same day (398  U.S. 977;  Cong. Rec., vol. 116,  pt. 7,  p.  9861, Exec. Comm. 1839;  H.  Doc. 91–291),  and became effective July  1,

1970.  The amendments  affected Rules 5(a), 9(h), 26,  29 to 37,  45(d), and 69(a), and Form 24.

On   March 1,  1971,  the  Court adopted additional amendments, which were transmitted  to Congress by the  Chief Justice on the same day (401  U.S. 1017;  Cong. Rec., vol. 117,  pt. 4,  p. 4629,  Exec. Comm. 341;  H.  Doc. 92–57),  and became effective July 1,  1971.  The amendments   affected  Rules  6(a),  27(a)(4), 30(b)(6), 77(c), and

81(a)(2).

Further  amendments were proposed by the Court in its orders dated November 20 and December 18, 1972, and transmitted to Con- gress by the Chief Justice on February 5, 1973 (409 U.S. 1132 and 419

U.S. 1133;  Cong. Rec., vol. 119,  pt. 3,  p. 3247,  Exec. Comm. 359;  H. Doc. 93–46).  Although these amendments were to have become ef- fective July 1,  1973,  Public Law 93–12 (approved March 30,  1973,  87

Stat. 9)  provided that  the proposed amendments ‘‘shall have no force or effect except to the extent, and with such amendments, as they may be  expressly approved by Act of  Congress.’’ Section

3 of  Public Law 93–595 (approved January 2, 1975, 88 Stat. 1949) ap- proved the  amendments proposed by the  Court, to  be   effective July 1, 1975. The amendments affected Rules 30(c), 43, and 44.1,  and abrogated Rule 32(c).

On   April 29,  1980,  the  Court adopted additional  amendments, which were transmitted  to Congress by the  Chief Justice on the same day (446  U.S. 995;  Cong. Rec., vol. 126,  pt. 8,  p. 9535,  Exec. Comm. 4260;  H.  Doc. 96–306),  and became effective August 1,  1980. The amendments affected Rules 4, 5, 26, 28, 30, 32, 33, 34, 37, and 45. Section 205(a)  and (b)  of  Public Law 96–481 (approved October 21,

1980, 94 Stat. 2330) repealed Rule 37(f)  and deleted the correspond- ing item from the Table of  Contents, to be   effective  October  1,

1981.

Amendments to Rule 4 were adopted by the Court by order dated April 28, 1982, transmitted to Congress by the Chief Justice on the same day (456  U.S. 1013;  Cong. Rec., vol. 128,  pt. 6,  p. 8191,  Exec. Comm. 3822;  H.  Doc. 97–173),  and became effective August 1,  1982. However, Public Law 97–227 (approved August 2, 1982, 96 Stat. 246) provided that the amendments to Rule 4 shall take effect on Octo- ber 1, 1983, unless previously approved, disapproved, or modified by Act of  Congress, and further provided that  this Act shall be  effec- tive as of  August 1, 1982, but shall not apply to the service of  proc- ess that takes place between August 1, 1982, and the date of  enact- ment of  this Act [August 2,  1982].  Section 5 of  Public Law 97–462 (approved January 12, 1983, 96 Stat. 2530) provided that the amend- ments to Rule 4 the effective date of  which was delayed by Public Law 97–227  shall not take  effect. Sections 2  to 4  of  Public  Law

97–462 amended Rule 4(a), (c)  to (e), and (g), added Rule 4(j), and added Form 18–A in the Appendix of  Forms, effective 45 days after enactment of  Public Law 97–462 [February 26, 1983].

Additional  amendments  were adopted by the  Court  by order dated April 28,  1983, transmitted to Congress by the Chief Justice on the same day (461 U.S. 1095; Cong. Rec., vol. 129, pt. 8,  p. 10479, Exec. Comm. 1027;  H.  Doc. 98–54),  and became effective August 1,

1983.  The amendments  included new Rules 26(g), 53(f),  72 through

76  and new Official Forms  33  and 34,  and amendments to Rules

6(b), 7(b), 11, 16, 26(a), (b), 52(a), 53(a), (b), (c), and 67.

Additional  amendments  were adopted by the  Court  by order

dated April 29,  1985, transmitted to Congress by the Chief Justice on the same day (471  U.S. 1153;  Cong. Rec., vol. 131,  pt. 7,  p. 9826, Exec. Comm. 1156;  H.  Doc. 99–63),  and became effective August 1,

1985.  The amendments  affected Rules 6(a),  45(d)(2), 52(a),  71A(h), and 83,  Official Form 18–A,  and Rules B(1), C(3),  and E(4)(f) of  the Supplemental  Rules for Certain Admiralty  and Maritime Claims. Additional  amendments  were adopted by the  Court  by order dated March 2, 1987, transmitted to Congress by the Chief Justice on the same day (480  U.S. 953;  Cong. Rec., vol. 133,  pt. 4,  p.  4484,

Exec. Comm. 714;  H.  Doc. 100–40),  and became effective August 1,

1987. The amendments affected Rules 4(b), (d)(1), (e), (i)(1), 5(b), (e),

6(e), 8(a), (b), (e)(2), 9(a), 11,  12(a), (b), (e)  to (g), 13(a), (e), (f),  14,

15,  16(f),  17,  18,  19(a), (b), 20(b), 22(1),  23(c)(2), 23.1,  24(a), 25(b), (d),

26(b)(3), (e)(1), (2),  (f)(5), (g), 27(a)(1), (b), 28(b), 30(b)(1), (2),  (4),  (6), (7),  (c), (e), (f)(1), (g), 31(a), (b), 32(a)(4), 34(a), 35(a), (b)(1), (2),  36,

37(a)(2), (b)(2), (c), (d), (g), 38(c), (d), 41(a)(2), (b), 43(f),  44(a)(1), 44.1,

45(c), (f),   46,  49(a), 50(b), (d),  51,  53(a), (c)   to  (e)(1), (3),  (5),  54(c),

55(a), (b), (e), 56(a), (b), (e)  to (g), 60(b), 62(f),  63,  65(b), 65.1,  68,  69,

71, 71A(d)(2), (3)(ii), (e)  to (g), (j), 73(b), 75(b)(2), (c)(1), (2),  (4),  77(c),

78, and 81(c), and Rules B,  C(3),  (6),  E(2)(b), (4)(b), (c), (5)(c), (9)(b), (c), and F(1) to (6)  of  the Supplemental Rules for Certain Admi- ralty and Maritime Claims.

Additional  amendments  were adopted by the  Court  by order

dated April 25,  1988, transmitted to Congress by the Chief Justice on the same day (485  U.S. 1043;  Cong. Rec., vol. 134,  pt. 7,  p. 9154, Exec. Comm. 3515; H.  Doc. 100–185), and became effective August 1,

1988. The amendments affected Rules 17(a)  and 71A(e).

Section 7047(b)   of   Public  Law 100–690  (approved  November 18,

1988,  102 Stat. 4401)  amended Rule 35.  Section 7049 of  Public Law

100–690, which directed amendment of  Rule 17(a)  by striking ‘‘with him’’, and section 7050 of  Public Law 100–690,  which directed amendment of  Rule  71A(e) by striking  ‘‘taking of  the defendants property’’ and  inserting  ‘‘taking  of   the  defendant’s property’’, could not be  executed because of  the intervening amendments to those Rules by the Court by order dated April 25,  1988,  effective August 1, 1988.

Additional  amendments  were adopted by the  Court  by order

dated April 30,  1991, transmitted to Congress by the Chief Justice on the same day (500  U.S. 963;  Cong. Rec., vol. 137,  pt. 7,  p.  9721, Ex. Comm. 1190; H.  Doc. 102–77),  and became effective December 1,

1991.  The amendments affected Rules 5,  15,  24,  34,  35,  41,  44,  45,  47,

48,  50,  52,  53,  63,  72,  and 77,  the headings for chapters VIII and IX, and Rules C  and E of  the Supplemental Rules for Certain Admi- ralty  and Maritime Claims, added new Official Forms 1A  and 1B, and abrogated Form 18–A.

Section 11  of   Pub.  L. 102–198  (approved  December 9,  1991,  105

Stat. 1626)  amended  Rule  15(c)(3) as transmitted  to Congress by the Supreme Court to become effective on December 1,  1991;  pro- vided that Forms 1A  and 1B  included in the transmittal  shall not be   effective; and  provided that   Form  18–A,   abrogated by the Supreme Court in the  transmittal,  effective December 1,   1991, shall continue in effect on or after that date.

Additional  amendments  were adopted by the  Court  by order dated April 22,  1993, transmitted to Congress by the Chief Justice on the same day (507  U.S. 1089;  Cong. Rec., vol. 139,  pt. 6,  p. 8127, Exec. Comm. 1102; H.  Doc. 103–74),  and became effective December

1, 1993. The amendments affected Rules 1, 4, 5, 11, 12, 15, 16, 26, 28,

29, 30, 31, 32, 33, 34, 36, 37, 38, 50, 52, 53, 54, 58, 71A,  72, 73, 74, 75, and

76, added new Rule 4.1,  affected Forms 2, 33, 34, and 34A,  added new

Forms 1A,  1B,  and 35, and abrogated Form 18–A.

Additional  amendments  were adopted by the  Court  by order

dated April 27,  1995, transmitted to Congress by the Chief Justice on the same day (514 U.S. 1151; Cong. Rec., vol. 141, pt. 8,  p. 11745, Ex. Comm. 804; H.  Doc. 104–64),  and became effective December 1,

1995. The amendments affected Rules 50, 52, 59, and 83.

Additional  amendments  were adopted by the  Court  by order

dated April 23,  1996, transmitted to Congress by the Chief Justice on the same day (517  U.S. 1279;  Cong. Rec., vol. 142,  pt. 6,  p. 8831, Ex. Comm. 2487;  H.  Doc. 104–201),  and became effective December

1, 1996. The amendments affected Rules 5 and 43.

Additional  amendments  were adopted by the  Court  by order

dated April 11,  1997, transmitted to Congress by the Chief Justice on the same day (520  U.S. 1305;  Cong. Rec., vol. 143,  pt. 4,  p. 5550, Ex. Comm. 2795; H.  Doc. 105–67),  and became effective December 1,

1997. The amendments affected Rules 9 and 73, abrogated  Rules 74,

75, and 76, and affected Forms 33 and 34.

Additional  amendments  were adopted by the  Court  by order

dated April 24,  1998, transmitted to Congress by the Chief Justice on the same day (523 U.S. 1221; H.  Doc. 105–266),  and became effec- tive December 1, 1998. The amendments affected Rule 23.

Additional  amendments  were adopted by the  Court  by order

dated April 26,  1999, transmitted to Congress by the Chief Justice on the same day (526  U.S. 1183;  Cong. Rec., vol. 145,  pt. 6,  p. 7907, Ex. Comm. 1787; H.  Doc. 106–54),  and became effective December 1,

1999. The amendments affected Rule 6 and Form 2.

Additional  amendments  were adopted by the  Court  by order

dated April 17,  2000, transmitted to Congress by the Chief Justice on the same day (529  U.S. 1155;  Cong. Rec., vol. 146,  pt. 5,  p. 6328, Ex. Comm. 7336;  H.  Doc. 106–228),  and became effective December

1,  2000.  The amendments affected Rules 4,  5,  12,  14,  26,  30,  and 37 and Rules B,  C,  and E of  the Supplemental Rules for Certain Ad- miralty and Maritime Claims.

Additional  amendments  were adopted by the  Court  by order

dated April 23,  2001, transmitted to Congress by the Chief Justice on the same day (532  U.S. 992;  Cong. Rec., vol. 147,  pt. 5,  p.  6126, Ex. Comm. 1575; H.  Doc. 107–61),  and became effective December 1,

2001. The amendments affected Rules 5, 6, 65, 77, 81, and 82. Additional  amendments  were adopted by the  Court  by order

dated April 29,  2002, transmitted to Congress by the Chief Justice on the same day (535  U.S. 1147;  Cong. Rec., vol. 148,  pt. 5,  p. 6813, Ex. Comm. 6623;  H.  Doc. 107–204),  and became effective December

1,  2002.  The amendments affected Rules 54,  58,  and 81 and Rule C of  the Supplemental Rules for Certain Admiralty and Maritime Claims and added new Rule 7.1.

Additional  amendments  were adopted by the  Court  by order

dated March 27, 2003, transmitted to Congress by the Chief Justice on the same day (538  U.S. 1083;  Cong. Rec., vol. 149,  pt. 6,  p. 7689,

Ex. Comm. 1493; H.  Doc. 108–56),  and became effective December 1,

2003.  The amendments  affected Rules 23,  51,  53,  54,  and 71A  and

Forms 19, 31, and 32.

Additional  amendments  were adopted by the  Court  by order

dated April 25,  2005, transmitted to Congress by the Chief Justice on the same day (544  U.S. 1173;  Cong. Rec., vol. 151,  pt. 7,  p. 8784, Ex. Comm. 1906; H.  Doc. 109–23),  and became effective December 1,

2005. The amendments affected Rules 6, 27, and 45, and Rules B and C of  the Supplemental Rules for Certain Admiralty and Maritime Claims.

Additional  amendments  were adopted by the  Court  by order

dated April 12,  2006, transmitted to Congress by the Chief Justice on the same day (547  U.S. 1233;  Cong. Rec., vol. 152,  pt. 6,  p. 7213, Ex. Comm. 7317;  H.  Doc. 109–105),  and became effective December

1, 2006. The amendments affected Rules 5, 9, 14, 16, 24, 26, 33, 34, 37,

45,  50,  and 65.1,   added new Rule  5.1,   affected Form 35,  affected Rules A,   C,  and E of  the  Supplemental Rules for Admiralty or Maritime  Claims and Asset Forfeiture  Actions,  and added new Rule G to such Supplemental Rules.

Additional  amendments  were adopted by the  Court  by order

dated April 30,  2007, transmitted to Congress by the Chief Justice on the same day (550 U.S. 1003; Cong. Rec., vol. 153, pt. 8,  p. 10612, Ex. Comm. 1377; H.  Doc. 110–27),  and became effective December 1,

2007.  The amendments affected Rules 1 through 86 and added new Rule 5.2;  Forms 1  through 35  were amended to become restyled Forms 1 through 82.

An   additional  amendment was adopted by the  Court by order

dated April 23,  2008, transmitted to Congress by the Chief Justice on the same day (553 U.S. 1149; Cong. Rec., vol. 154, pt. 8,  p. 11078, Ex. Comm. 6881;  H.  Doc. 110–117),  and became effective December

1, 2008. The amendment affected Rule C of  the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture  Actions.

Additional  amendments  were adopted by the  Court  by order

dated March 26, 2009, transmitted to Congress by the Chief Justice on March 25, 2009 (556 U.S. 1341; Cong. Rec., vol. 155, pt. 8, p. 10210, Ex. Comm. 1264; H.  Doc. 111–29),  and became effective December 1,

2009.  The amendments affected Rules 6,  12,  13,  14,  15,  23,  27,  32,  38,

48, 50, 52, 53, 54, 55, 56, 59, 62, 65, 68, 71.1,  72, and 81, added new Rule

62.1,  and affected Forms 3,  4,  and 60, and Rules B,  C,  and G  of  the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions.

Additional  amendments  were adopted by the  Court  by order

dated April 28,  2010, transmitted to Congress by the Chief Justice on the same day (559 U.S.——; Cong. Rec.,  vol. 156, p. H3481,  Daily Issue, Ex. Comm. 7473;  H.  Doc. 111–111),  and became effective De- cember 1,  2010.  The amendments affected Rules 8,  26,  and 56,  and Form  52.

Committee Notes

Committee Notes prepared by the Committee on Rules of  Prac- tice and Procedure and the Advisory Committee on the Federal Rules  of    Civil  Procedure,  Judicial   Conference  of    the  United States, explaining the purpose and intent of  the amendments are set out in the Appendix to Title 28, United States  Code, following

HISTORICAL NOTE

XIII

the particular rule to which they relate. In addition, the rules and amendments, together with Committee Notes, are set out in the House documents listed above.

TABLE OF CONTENTS

Page Foreword ………………………………………………………………………………………………..    III Authority for promulgation of  rules …………………………………………………………..        V Historical note ………………………………………………………………………………………..      VII

RULES

TITLE I. SCOPE OF  RULES; FORM OF  ACTION

Rule 1. Scope and Purpose …………………………………………………………………..                    1

Rule 2. One Form of  Action …………………………………………………………………                   1

TITLE II. COMMENCING AN  ACTION; SERVICE OF  PROCESS, PLEADINGS,

MOTIONS, AND ORDERS

Rule 3. Commencing an Action …………………………………………………………….                    1

Rule 4. Summons ……………………………………………………………………………….                    1

Rule 4.1. Serving Other Process ……………………………………………………………                    6

Rule 5. Serving and Filing Pleadings and Other Papers …………………………..                    6

Rule 5.1. Constitutional Challenge to a Statute—Notice, Certification, and

Intervention …………………………………………………………………………..                     8

Rule 5.2. Privacy Protection For Filings Made with the Court …………………                      9

Rule 6. Computing and Extending Time; Time for Motion Papers  …………….                   10

TITLE III. PLEADINGS AND MOTIONS

Rule 7. Pleadings Allowed; Form of  Motions and Other Papers  ………………..               11

Rule 7.1. Disclosure Statement …………………………………………………………….                   12

Rule 8. General Rules of  Pleading ………………………………………………………..                   12

Rule 9. Pleading Special Matters ………………………………………………………….                    14

Rule 10. Form of  Pleadings ………………………………………………………………….                  15

Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to

the Court; Sanctions ……………………………………………………………….                   15

Rule 12. Defenses and Objections: When and How Presented; Motion for

Judgment on the Pleadings; Consolidating Motions; Waiving

Defenses; Pretrial Hearing ………………………………………………………. 16
Rule 13. Counterclaim and Crossclaim …………………………………………………. 19
Rule 14. Third-Party Practice ……………………………………………………………… 19
Rule 15. Amended and Supplemental Pleadings …………………………………….. 21
Rule 16. Pretrial Conferences; Scheduling; Management  ………………………… 22

TITLE IV. PARTIES

Rule 17. Plaintiff and Defendant; Capacity; Public Officers ……………………..                    24

Rule 18. Joinder of  Claims …………………………………………………………………..                   26

Rule 19. Required Joinder of  Parties  …………………………………………………….                    26

Rule 20. Permissive Joinder of  Parties ………………………………………………….                    27

Rule 21. Misjoinder and Nonjoinder of  Parties  ……………………………………….                  27

Rule 22. Interpleader …………………………………………………………………………..                   27

Rule 23. Class Actions …………………………………………………………………………                  28

Rule 23.1. Derivative Actions ……………………………………………………………….                   31

Rule 23.2. Actions Relating to Unincorporated Associations …………………….                    32

Rule 24. Intervention ………………………………………………………………………….                   32

Rule 25. Substitution of  Parties  …………………………………………………………..                     33

TITLE V.  DISCLOSURES  AND DISCOVERY

Rule 26. Duty to Disclose; General Provisions Governing Discovery …………                34

Rule 27. Depositions to Perpetuate Testimony ……………………………………….                    42

Rule 28. Persons Before Whom Depositions May Be  Taken ………………………               43

Rule 29. Stipulations About Discovery Procedure …………………………………..                   44

Rule 30. Depositions by Oral Examination  …………………………………………….                  44

Rule 31. Depositions by Written Questions …………………………………………….                  48

Rule 32. Using Depositions in Court Proceedings ……………………………………                  49

Rule 33. Interrogatories to Parties ……………………………………………………….                      51

Rule 34. Producing Documents, Electronically Stored Information, and

Tangible Things, or Entering onto Land, for Inspection and Other

Purposes ………………………………………………………………………………..                 52

(XV)

TITLE V.  DISCLOSURES AND DISCOVERY—Continued                                                                                  Page

Rule 35. Physical and Mental Examinations  ………………………………………….       54

Rule 36. Requests for Admission …………………………………………………………..       55

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery;

Sanctions ………………………………………………………………………………                  56

TITLE VI. TRIALS

Rule 38. Right to a Jury Trial; Demand …………………………………………………       59

Rule 39. Trial by Jury or by the Court ………………………………………………….      60

Rule 40. Scheduling Cases for Trial ………………………………………………………      60

Rule 41. Dismissal of  Actions ……………………………………………………………….       60

Rule 42. Consolidation; Separate Trials …………………………………………………       61

Rule 43. Taking Testimony ………………………………………………………………….       61

Rule 44. Proving an Official Record ………………………………………………………       62

Rule 44.1. Determining Foreign Law ……………………………………………………..       63

Rule 45. Subpoena ………………………………………………………………………………        63

Rule 46. Objecting to a Ruling or Order …………………………………………………       67

Rule 47. Selecting Jurors …………………………………………………………………….     67

Rule 48. Number of  Jurors; Verdict; Polling …………………………………………..       67

Rule 49. Special Verdict; General Verdict and Questions …………………………       68

Rule 50. Judgment as a Matter of  Law in a Jury Trial; Related Motion for

a New Trial; Conditional Ruling ……………………………………………….                  69

Rule 51. Instructions to the Jury; Objections; Preserving a Claim of  Error ..       70

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

Findings ………………………………………………………………………………..                 71

Rule 53. Masters …………………………………………………………………………………        71

TITLE VII. JUDGMENT

Rule 54. Judgment; Costs …………………………………………………………………….       74

Rule 55. Default; Default Judgment  ……………………………………………………..       75

Rule 56. Summary Judgment ……………………………………………………………….      76

Rule 57. Declaratory Judgment ……………………………………………………………      77

Rule 58. Entering Judgment ………………………………………………………………..      77

Rule 59. New Trial; Altering or Amending a Judgment ……………………………       78

Rule 60. Relief from a Judgment or Order ……………………………………………..        79

Rule 61. Harmless Error ………………………………………………………………………       80

Rule 62. Stay of  Proceedings to Enforce a Judgment  ………………………………       80

Rule 62.1. Indicative Ruling on a Motion for Relief That is Barred by a

Pending Appeal ………………………………………………………………………                  81

Rule 63. Judge’s Inability to Proceed ……………………………………………………      81

TITLE VIII. PROVISIONAL AND FINAL REMEDIES

Rule 64. Seizing a Person or Property  …………………………………………………..       82

Rule 65. Injunctions and Restraining Orders ………………………………………….       82

Rule 65.1. Proceedings Against a Surety ………………………………………………..       83

Rule 66. Receivers ………………………………………………………………………………        84

Rule 67. Deposit into Court ………………………………………………………………….       84

Rule 68. Offer of  Judgment  ………………………………………………………………….      84

Rule 69. Execution ……………………………………………………………………………..        85

Rule 70. Enforcing a Judgment for a Specific Act …………………………………..       85

Rule 71. Enforcing Relief For or Against a Nonparty ………………………………       86

TITLE IX. SPECIAL PROCEEDINGS

Rule 71.1. Condemning Real or Personal Property  ………………………………….       86

Rule 72. Magistrate Judges: Pretrial Order ……………………………………………      90

Rule 73. Magistrate Judges: Trial by Consent; Appeal …………………………….       91

Rule 74. [Abrogated.] Rule 75. [Abrogated.] Rule 76. [Abrogated.]

TITLE X.  DISTRICT COURTS AND CLERKS: CONDUCTING BUSINESS; ISSUING ORDERS

Rule 77. Conducting Business; Clerk’s Authority; Notice of  an Order or

Judgment ………………………………………………………………………………                  92

Rule 78. Hearing Motions; Submission on Briefs …………………………………….        92

Rule 79. Records Kept by the Clerk ………………………………………………………       93

Rule 80. Stenographic Transcript as Evidence ………………………………………..       93

TITLE XI. GENERAL PROVISIONS

Rule 81. Applicability of  the Rules in General; Removed Actions ……………..        93

Rule 82. Jurisdiction and Venue Unaffected …………………………………………..       95

Rule 83. Rules by District Courts; Judge’s Directives ……………………………..       95

Rule 84. Forms …………………………………………………………………………………..       96

CONTENTS

XVII

TITLE XI. GENERAL PROVISIONS—Continued                                                                                                         Page

Rule 85. Title …………………………………………………………………………………….                   96

Rule 86. Effective Dates ………………………………………………………………………                   96

APPENDIX OF  FORMS

Form 1. Caption ………………………………………………………………………………………                   98

Form 2. Date, Signature, Address, E-mail Address, and Telephone Number …….                  99

Form 3. Summons ……………………………………………………………………………………                100

Form 4. Summons on a Third-Party Complaint …………………………………………..                 101

Form 5. Notice of  a Lawsuit and Request to Waive Service of  a Summons ………               102

Form 6. Waiver of  the Service of  Summons …………………………………………………                 103

Form 7. Statement of  Jurisdiction …………………………………………………………….                   104

Form 8. Statement of  Reasons for Omitting a Party  ……………………………………                    105

Form 9. Statement Noting a Party’s Death …………………………………………………                   106

Form 10. Complaint to Recover a Sum Certain ……………………………………………                  107

Form 11. Complaint for Negligence ……………………………………………………………                 108

Form 12. Complaint for Negligence When the Plaintiff Does Not Know Who Is

Responsible …………………………………………………………………………….               109

Form 13. Complaint for Negligence Under the Federal Employers’ Liability Act                 110

Form 14. Complaint for Damages Under the Merchant Marine Act …………………                  111

Form 15. Complaint for the Conversion of  Property ……………………………………..                 112

Form 16. Third-Party Complaint ……………………………………………………………….                 113

Form 17. Complaint for Specific Performance of  a Contract to Convey Land …..                114

Form 18. Complaint for Patent Infringement ………………………………………………                   115

Form 19. Complaint for Copyright Infringement and Unfair Competition ……….                  116

Form 20. Complaint for Interpleader and Declaratory Relief …………………………                   117

Form 21. Complaint on a Claim for a Debt and to Set Aside a Fraudulent

Conveyance Under Rule 18(b)  …………………………………………………….             118

Form 30. Answer Presenting Defenses Under Rule 12(b)   ………………………………..             119

Form 31. Answer to a Complaint for Money Had and Received with a

Counterclaim for Interpleader …………………………………………………..                 120

Form 40. Motion to Dismiss Under Rule 12(b)  for Lack of  Jurisdiction,

Improper Venue, Insufficient Service of  Process, or Failure to State
a Claim …………………………………………………………………………………. 121
Form 41. Motion to Bring in a Third-Party Defendant …………………………………. 122
Form 42. Motion to Intervene as a Defendant Under Rule 24 …………………………. 123
Form 50. Request to Produce Documents and Tangible Things, or to Enter onto
Land Under Rule 34 …………………………………………………………………. 124
Form 51. Request for Admissions Under Rule 36 ………………………………………….. 125
Form 52. Report of  the Parties’ Planning Meeting ………………………………………. 126
Form 60. Notice of  Condemnation …………………………………………………………….. 127
Form 61. Complaint for Condemnation ………………………………………………………. 128
Form 70. Judgment on a Jury Verdict ……………………………………………………….. 129
Form 71. Judgment by the Court without a Jury ………………………………………… 130
Form 80. Notice of  a Magistrate Judge’s Availability ………………………………….. 131
Form 81. Consent to an Assignment to a Magistrate Judge ………………………….. 132
Form 82. Order of  Assignment to a Magistrate Judge ………………………………….. 133

SUPPLEMENTAL RULES FOR ADMIRALTY OR  MARITIME CLAIMS AND ASSET FORFEITURE ACTIONS

Rule A.  Scope of  Rules ……………………………………………………………………………..               134

Rule B.  In Personam Actions: Attachment and Garnishment ………………………..                  134

Rule C. In Rem Actions: Special Provisions ………………………………………………..               135

Rule D.  Possessory, Petitory, and Partition Actions ……………………………………                  137

Rule E. Actions in Rem and Quasi in Rem: General Provisions ……………………..               138

Rule F. Limitation of  Liability …………………………………………………………………                    141

Rule G.  Forfeiture Actions In Rem …………………………………………………………….                 144

RULES OF CIVIL  PROCEDURE

FOR  THE

UNITED STATES DISTRICT COURTS 1

Effective September 16,  1938, as  amended to  December 1, 2011

TITLE I. SCOPE OF  RULES; FORM OF  ACTION

Rule 1. Scope and Purpose

These rules govern the procedure in all civil actions and pro- ceedings in the United States district courts, except as stated in Rule 81. They should be  construed and administered to secure the just,  speedy, and inexpensive determination  of  every action and proceeding.

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

1, 1966; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 2. One Form of Action

There is one form of  action—the civil action. (As  amended Apr. 30, 2007, eff. Dec. 1, 2007.)

TITLE II. COMMENCING AN  ACTION; SERVICE OF  PROCESS, PLEADINGS, MOTIONS, AND ORDERS

Rule 3. Commencing an  Action

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

(As  amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 4. Summons

(a) CONTENTS; AMENDMENTS.

(1) Contents. A summons must:

(A)  name the court and the parties;

(B)  be  directed to the defendant;

(C)  state the name and address of  the plaintiff’s attorney

or—if unrepresented—of  the plaintiff;

(D)  state the time within which the defendant must ap-

pear and defend;

(E)  notify the defendant that a failure to appear and de-

fend will result in a default judgment against the defend- ant for the relief demanded in the complaint;

(F) be  signed by the clerk; and

(G)  bear the court’s seal.

(2)   Amendments. The court  may  permit  a  summons to  be

amended.

1 Title amended December 29, 1948, effective October 20, 1949.

(1)

(b)  ISSUANCE. On  or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the sum- mons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A  summons—or a copy of  a summons that is addressed to multiple defendants—must be  issued for each defendant to be  served.

(c)  SERVICE.

(1) In General. A summons must be  served with a copy of  the complaint. The plaintiff is responsible for having the summons and complaint  served within  the  time  allowed by Rule 4(m) and  must  furnish  the  necessary  copies to  the  person who makes service.

(2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

(3) By a Marshal or Someone Specially Appointed. At the plain- tiff’s request, the court may order that  service be  made by a United States  marshal or deputy marshal or by a person spe- cially appointed by the court. The court must so  order if the plaintiff is authorized to proceed in forma pauperis under 28

U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.

(d)  WAIVING SERVICE.

(1)  Requesting a  Waiver. An  individual, corporation, or asso- ciation that is subject to service under Rule 4(e), (f),  or (h)  has a duty to avoid unnecessary expenses of  serving the summons. The plaintiff may notify such a defendant that  an action has been commenced and request that the defendant waive service of  a summons. The notice and request must:

(A)  be  in writing and be  addressed:

(i)  to the individual defendant; or

(ii) for a defendant subject to service under Rule 4(h), to  an  officer, a  managing or general agent,  or any other agent authorized by appointment or by law to re- ceive service of  process;

(B)  name the court where the complaint was filed;

(C)  be  accompanied by a copy of  the complaint, 2 copies of  a waiver form, and a prepaid means for returning the form;

(D)  inform the defendant, using text prescribed in Form

5, of  the consequences of  waiving and not waiving service; (E)  state the date when the request is sent;

(F) give the defendant a reasonable time of  at least 30 days after the request was sent—or at least 60 days if sent to the defendant outside any judicial district of  the United States—to return the waiver; and

(G)  be  sent by first-class mail or other reliable means.

(2) Failure to  Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(A)  the expenses later incurred in making service; and

(B)  the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

(3)  Time to  Answer After a  Waiver. A  defendant  who, before being served with process, timely returns a waiver need not

serve an answer to the complaint until 60  days after the re- quest was sent—or until  90  days after it was sent to the de- fendant outside any judicial district of  the United States.

(4)  Results of  Filing a  Waiver. When the plaintiff files a waiv-

er, proof of  service is not required and these rules apply as if a summons and complaint had been served at the time of  filing the waiver.

(5)  Jurisdiction and Venue Not   Waived. Waiving service  of  a

summons does not waive any objection to personal jurisdic- tion or to venue.

(e)   SERVING  AN   INDIVIDUAL  WITHIN  A   JUDICIAL   DISTRICT  OF  THE

UNITED STATES. Unless federal law provides otherwise, an individ- ual—other than  a  minor,  an  incompetent  person, or  a  person whose waiver has been filed—may be  served in a judicial district of  the United States by:

(1)  following state law for serving a summons in an action

brought in courts of  general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of  the following:

(A)   delivering a copy of  the summons and of  the com-

plaint to the individual personally;

(B)  leaving a copy of  each at the individual’s dwelling or

usual place of  abode with someone of  suitable age and dis- cretion who resides there; or

(C)  delivering a copy of  each to an agent authorized by

appointment or by law to receive service of  process.

(f)  SERVING AN   INDIVIDUAL IN   A  FOREIGN  COUNTRY. Unless federal

law provides otherwise, an individual—other than a minor, an in- competent  person, or a person whose waiver has been filed—may be  served at a place not within any judicial district of  the United States:

(1)  by any internationally  agreed means of  service that  is

reasonably calculated to give notice, such as those authorized by the  Hague Convention on the  Service Abroad of  Judicial and Extrajudicial Documents;

(2) if there is no internationally agreed means, or if an inter-

national agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A)  as prescribed by the foreign country’s law for service

in that country in an action in its courts of  general juris- diction;

(B)  as the foreign authority directs in response to a let-

ter rogatory or letter of  request; or

(C)  unless prohibited by the foreign country’s law, by:

(i)  delivering a copy of  the summons and of  the com-

plaint to the individual personally; or

(ii) using any form of  mail that the clerk addresses

and sends to the individual and that  requires a signed receipt; or

(3)  by other means not prohibited by international  agree-

ment, as the court orders.

(g)  SERVING A  MINOR OR   AN   INCOMPETENT PERSON. A  minor or an

incompetent person in a judicial district  of   the United States must be  served by following state  law for serving a summons or like process on such a defendant in an action brought in the

courts of  general jurisdiction of  the state  where service is made. A  minor or an incompetent person who is not within any judicial district of  the United States must be  served in the manner pre- scribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3).

(h)   SERVING A  CORPORATION, PARTNERSHIP,  OR   ASSOCIATION. Un-

less federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that  is subject to suit under a common name, must be  served:

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

(A)  in the  manner  prescribed  by Rule 4(e)(1) for serving

an individual; or

(B)  by delivering a copy of  the summons and of  the com-

plaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to re- ceive service of  process and—if the agent is one authorized by statute  and the statute  so  requires—by also mailing a copy of  each to the defendant; or

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

States,  in any manner prescribed by Rule 4(f)  for serving an individual, except personal delivery under (f)(2)(C)(i).

(i)   SERVING  THE  UNITED  STATES   AND  ITS   AGENCIES, CORPORA-

TIONS, OFFICERS, OR  EMPLOYEES.

(1)  United States. To  serve the United States, a party must:

(A)(i) deliver  a copy of   the  summons and of   the  com-

plaint to the United States attorney for the district where the action is brought—or to an assistant United States at- torney or clerical employee whom the United States attor- ney designates  in a writing  filed with the  court  clerk—or (ii) send a copy of  each by registered or certified mail to the civil-process clerk at the United States attorney’s of-

fice;

(B)  send a copy of  each by registered or certified mail to

the Attorney General of  the United States at Washington, D.C.; and

(C)  if the action challenges an order of  a nonparty  agen-

cy or officer of  the United States, send a copy of  each by registered or certified mail to the agency or officer.

(2) Agency; Corporation; Officer or Employee Sued in an Official

Capacity. To   serve a United States  agency or corporation, or a United States officer or employee sued only in an official ca- pacity, a party must serve the United States and also send a copy of  the summons and of  the complaint by registered or

certified mail to the agency, corporation,  officer, or employee. (3)  Officer or  Employee Sued Individually.  To   serve a United States officer or employee sued in an individual capacity  for an act  or omission occurring  in connection  with  duties  per- formed on the United States’ behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee

under Rule 4(e), (f),  or (g).

(4)  Extending Time. The court must allow a party  a reason-

able time to cure its failure to:

(A)   serve a  person required to  be   served  under  Rule

4(i)(2), if the party has served either the United States at- torney or the Attorney General of  the United States; or

(B)   serve the  United  States  under  Rule 4(i)(3), if the party has served the United States officer or employee.

(j)  SERVING A  FOREIGN, STATE, OR  LOCAL GOVERNMENT.

(1)  Foreign State. A  foreign state or its political  subdivision,

agency, or instrumentality must be  served in accordance with

28 U.S.C. § 1608.

(2)  State or  Local Government. A  state,  a municipal corpora-

tion,  or any other  state-created  governmental organization that is subject to suit must be  served by:

(A)   delivering a copy of  the summons and of  the com-

plaint to its chief executive officer; or

(B)  serving a copy of  each in the manner prescribed by

that  state’s law for serving a summons or like process on such a defendant.

(k) TERRITORIAL LIMITS OF EFFECTIVE SERVICE.

(1)  In General. Serving a summons or filing a waiver of  serv-

ice establishes personal jurisdiction over a defendant:

(A)  who is subject to the jurisdiction of  a court of  gen-

eral jurisdiction in the state where the district court is lo- cated;

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

served within a judicial district of  the United States and not more than 100 miles from where the summons was is- sued; or

(C)  when authorized by a federal statute.

(2)  Federal Claim Outside State-Court Jurisdiction. For a claim

that  arises under federal law, serving a summons or filing a waiver of  service establishes personal jurisdiction  over a de- fendant if:

(A)   the defendant is not subject to jurisdiction in any

state’s courts of  general jurisdiction; and

(B)  exercising jurisdiction is consistent with the United

States Constitution and laws. (l)  PROVING SERVICE.

(1)  Affidavit Required. Unless service is waived, proof of  serv-

ice must be  made to the court. Except for service by a United States marshal or deputy marshal, proof must be  by the serv- er’s affidavit.

(2)  Service Outside the United States. Service  not within any

judicial district of  the United States must be   proved as fol- lows:

(A)  if made under  Rule 4(f)(1), as provided in the applica-

ble treaty or convention; or

(B)  if made under Rule 4(f)(2)  or (f)(3), by a receipt signed

by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the ad- dressee.

(3)  Validity of  Service; Amending Proof. Failure to prove serv-

ice does not affect the validity of  service. The court may per- mit proof of  service to be  amended.

(m) TIME LIMIT FOR SERVICE. If a defendant is not served within

120 days after the complaint is filed, the court—on motion or on its  own after  notice to  the  plaintiff—must dismiss the  action without prejudice against that  defendant or order that  service be made within a specified time. But if the plaintiff shows good cause

for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f)  or 4(j)(1).

(n)  ASSERTING JURISDICTION  OVER PROPERTY  OR  ASSETS.

(1) Federal Law. The court may assert jurisdiction over prop-

erty if authorized by a federal statute.  Notice to claimants of the property must be  given as provided in the statute  or by serving a summons under this rule.

(2)  State Law. On  a showing that  personal jurisdiction over

a defendant cannot be  obtained in the district  where the ac- tion  is  brought  by reasonable efforts  to  serve a  summons under this rule, the court may assert jurisdiction over the de- fendant’s assets found in the district. Jurisdiction is acquired by seizing the assets under the circumstances and in the man- ner provided by state law in that district.

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

1,  1966;  Apr. 29,  1980,  eff. Aug. 1,  1980;  Pub. L. 97–462,  § 2,  Jan. 12,

1983,  96 Stat. 2527,  eff. Feb. 26,  1983;  Mar. 2,  1987,  eff. Aug. 1,  1987; Apr. 22,  1993,  eff. Dec. 1,  1993;  Apr. 17,  2000,  eff. Dec. 1,  2000;  Apr.

30, 2007, eff. Dec. 1, 2007.)

Rule 4.1.  Serving Other Process

(a) IN GENERAL. Process—other than a summons under Rule 4 or a subpoena under Rule 45—must be  served by a United States mar- shal or deputy marshal or by a person specially appointed for that purpose. It may be  served anywhere within the territorial limits of  the state where the district court is located and, if authorized by a federal statute, beyond those limits. Proof of  service must be made under Rule 4(l).

(b)   ENFORCING   ORDERS:  COMMITTING  FOR   CIVIL   CONTEMPT.  An

order committing a person for civil contempt of  a decree or in- junction issued to enforce federal law may be  served and enforced in any district.  Any other order in a civil-contempt proceeding may be  served only in the state where the issuing court is located or elsewhere in the United States within 100 miles from where the order was issued.

(As  added Apr. 22, 1993, eff. Dec. 1, 1993; amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 5. Serving and Filing Pleadings and Other Papers

(a) SERVICE: WHEN REQUIRED.

(1)  In General. Unless these  rules  provide otherwise,  each of

the following papers must be  served on every party: (A)  an order stating that service is required;

(B)  a pleading filed after the original complaint, unless

the court orders otherwise under Rule 5(c)   because there are numerous defendants;

(C)  a discovery paper required to be  served on a party,

unless the court orders otherwise;

(D)  a written motion, except one that  may be  heard ex

parte; and

(E)   a  written  notice,  appearance,  demand, or  offer of

judgment, or any similar paper.

(2)  If a  Party  Fails to   Appear. No   service is required on a

party who is in default for failing to appear. But a pleading

that asserts a new claim for relief against such a party must be  served on that party under Rule 4.

(3)  Seizing Property. If an action is begun by seizing property

and no person is or need be  named as a defendant, any service required before the filing of  an appearance, answer, or claim must be  made on the person who had custody or possession of the property when it was seized.

(b)  SERVICE:  HOW MADE.

(1)  Serving an Attorney. If a party  is represented  by an attor-

ney, service under this rule must be  made on the attorney un- less the court orders service on the party.

(2) Service in General. A paper is served under this rule by:

(A)  handing it to the person;

(B)  leaving it:

(i)  at the person’s office with a clerk or other person

in charge or, if no one is in charge, in a conspicuous place in the office; or

(ii) if the person has no office or the office is closed,

at the person’s dwelling or usual place of  abode with someone  of   suitable  age  and  discretion  who resides there;

(C)   mailing it  to  the  person’s last  known address—in

which event service is complete upon mailing;

(D)  leaving it with the court clerk if the person has no

known address;

(E)   sending it  by electronic  means if the  person con-

sented in writing—in which event service is complete upon transmission, but  is not  effective if the  serving party learns that it did not reach the person to be  served; or

(F) delivering it by any other means that the person con-

sented to in writing—in which event service is complete when the person making service delivers it to the agency designated to make delivery.

(3) Using Court Facilities. If a local rule so  authorizes, a party

may use the court’s transmission facilities to make service under Rule 5(b)(2)(E).

(c)  SERVING NUMEROUS DEFENDANTS.

(1)  In General. If an action  involves an unusually large num-

ber of  defendants, the court may, on motion or on its  own, order that:

(A)  defendants’ pleadings and replies to them need not be

served on other defendants;

(B)  any crossclaim, counterclaim, avoidance, or affirma-

tive defense in those pleadings and replies to them will be treated as denied or avoided by all other parties; and

(C)  filing any such pleading and serving it on the plain-

tiff constitutes notice of  the pleading to all parties.

(2)  Notifying  Parties. A  copy  of   every such order  must  be

served on the parties as the court directs. (d)  FILING.

(1)  Required Filings; Certificate of  Service. Any paper after the

complaint that is required to be  served—together with a cer- tificate of   service—must  be   filed 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 fil- ing: depositions, interrogatories,  requests for documents or tangible things or to permit entry onto land, and requests for admission.

(2)  How Filing Is  Made—In General. A  paper is filed by deliv-

ering it:

(A)  to the clerk; or

(B)  to a judge who agrees to accept it for filing, and who

must then note the filing date on the paper and promptly send it to the clerk.

(3)  Electronic Filing, Signing, or  Verification. A  court may, by

local rule, allow papers to be  filed, signed, or verified by elec- tronic means that are consistent with any technical standards established by the Judicial Conference of  the United States. A local rule may require electronic filing only if reasonable ex- ceptions are allowed. A  paper filed electronically  in compli- ance with a local rule is a written paper for purposes of  these rules.

(4)  Acceptance by  the Clerk. The clerk must not refuse to file

a paper solely because it is not in the form prescribed by these rules or by a local rule or practice.

(As  amended Jan. 21,  1963, eff. July 1,  1963; Mar. 30,  1970, eff. July

1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30,  1991,  eff. Dec. 1,  1991;  Apr. 22,  1993,  eff. Dec. 1,  1993;  Apr.

23, 1996, eff. Dec. 1, 1996; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 23, 2001,

eff. Dec. 1, 2001; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec.

1, 2007.)

Rule  5.1.   Constitutional  Challenge  to   a   Statute—Notice,  Certifi- cation, and Intervention

(a) NOTICE BY   A   PARTY. A  party that  files a pleading, written motion, or other paper drawing into question the constitutional- ity of  a federal or state statute must promptly:

(1)  file a notice of  constitutional question stating the ques-

tion and identifying the paper that raises it, if:

(A)  a federal statute is questioned and the parties do  not

include the United States, one of  its agencies, or one of  its officers or employees in an official capacity; or

(B)  a state statute  is questioned and the parties do  not

include the state, one of  its agencies, or one of  its officers or employees in an official capacity; and

(2) serve the notice and paper on the Attorney General of  the

United States  if a federal statute  is  questioned—or on the state attorney general if a state statute is questioned—either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose.

(b)  CERTIFICATION BY  THE COURT. The court must, under 28 U.S.C.

§ 2403,  certify to the appropriate attorney general that a statute has been questioned.

(c)   INTERVENTION;  FINAL  DECISION  ON    THE  MERITS.  Unless  the

court sets a later time, the attorney general may intervene within

60  days after the notice is filed or after the court certifies the challenge, whichever is earlier. Before the time to intervene ex- pires, the court may reject the constitutional challenge, but may not enter a final judgment holding the statute  unconstitutional.

9                                FEDERAL RULES OF  CIVIL PROCEDURE

Rule 5.2

(d)  NO  FORFEITURE. A party’s failure to file and serve the notice, or the court’s failure to certify, does not forfeit a constitutional claim or defense that is otherwise timely asserted.

(As  added Apr. 12, 2006, eff. Dec. 1, 2006; amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 5.2.  Privacy Protection For  Filings Made with the Court

(a) REDACTED FILINGS. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individ- ual’s social-security number, taxpayer-identification  number, or birth date, the name of  an individual known to be  a minor, or a financial-account number, a party or nonparty making the filing may include only:

(1) the last four digits of  the social-security number and tax-

payer-identification number;

(2) the year of  the individual’s birth; (3) the minor’s initials; and

(4) the last four digits of  the financial-account number.

(b)  EXEMPTIONS  FROM  THE  REDACTION REQUIREMENT. The redac-

tion requirement does not apply to the following:

(1)  a financial-account number that  identifies the property

allegedly subject to forfeiture in a forfeiture proceeding; (2) the record of  an administrative or agency proceeding; (3) the official record of  a state-court proceeding;

(4)  the record of  a court or tribunal, if that record was not

subject to the redaction requirement when originally filed; (5) a filing covered by Rule 5.2(c) or (d);  and

(6) a pro se filing in an action brought under 28 U.S.C. §§ 2241,

2254, or 2255.

(c)  LIMITATIONS ON  REMOTE ACCESS TO  ELECTRONIC FILES; SOCIAL-

SECURITY APPEALS  AND IMMIGRATION CASES. Unless the  court  or- ders otherwise, in an action for benefits under the Social Security Act, and in an action or proceeding relating  to an order of  re- moval, to relief from removal, or to immigration benefits or de- tention, access to an electronic file is authorized as follows:

(1)  the parties and their  attorneys  may have remote elec-

tronic access to any part of  the case file, including the admin- istrative record;

(2)  any other person may have electronic access to the full

record at the courthouse, but may have remote electronic ac- cess only to:

(A)  the docket maintained by the court; and

(B)  an opinion, order, judgment, or other disposition of

the court, but not any other part of  the case file or the ad- ministrative record.

(d)  FILINGS MADE UNDER SEAL. The court may order that a filing

be  made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a re- dacted version for the public record.

(e)  PROTECTIVE ORDERS. For good cause, the court may by order

in a case:

(1) require redaction of  additional information; or

(2) limit or prohibit a nonparty’s remote electronic access to

a document filed with the court.

Rule 6                       FEDERAL RULES OF  CIVIL PROCEDURE                                                                 10

(f)  OPTION  FOR  ADDITIONAL UNREDACTED FILING  UNDER  SEAL.  A person making a redacted filing may also file an unredacted copy under seal. The court must retain the unredacted copy as part of the record.

(g)  OPTION FOR FILING  A  REFERENCE LIST. A  filing that contains

redacted information may be  filed together with a reference list that identifies each item of  redacted information and specifies an appropriate identifier that uniquely corresponds to each item list- ed. The list must be  filed under seal and may be  amended as of right. Any reference in the case to a listed identifier will be  con- strued to refer to the corresponding item of  information.

(h)  WAIVER OF PROTECTION OF IDENTIFIERS.  A  person waives the

protection of  Rule 5.2(a) as to the person’s own information by fil- ing it without redaction and not under seal.

(As  added Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 6. Computing and Extending Time; Time for  Motion Papers

(a) COMPUTING TIME. The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of  comput- ing time.

(1)  Period Stated in Days or  a  Longer Unit. When the period is

stated in days or a longer unit of  time:

(A)  exclude the day of  the event that triggers the period; (B)  count every day, including intermediate Saturdays,

Sundays, and legal holidays; and

(C)  include the last day of  the period, but if the last day

is a Saturday,  Sunday, or legal holiday, the period con- tinues to run until the end of  the next day that  is not a Saturday, Sunday, or legal holiday.

(2) Period Stated in Hours. When the period is stated in hours:

(A)  begin counting immediately on the occurrence of  the

event that triggers the period;

(B)  count every hour, including hours during intermedi-

ate Saturdays, Sundays, and legal holidays; and

(C)  if the period would end on a Saturday,  Sunday, or

legal holiday, the period continues to run until the same time on the next day that  is not a Saturday, Sunday, or legal holiday.

(3) Inaccessibility of  the Clerk’s Office. Unless the court orders

otherwise, if the clerk’s office is inaccessible:

(A)  on the last  day for filing under Rule 6(a)(1), then the

time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday; or

(B)  during the last hour for filing under Rule 6(a)(2), then

the time for filing is extended to the same time on the first  accessible day that  is not a Saturday, Sunday, or legal holiday.

(4)  ‘‘Last Day’’ Defined. Unless a different  time  is set  by a

statute, local rule, or court order, the last day ends:

(A)  for electronic filing, at midnight in the court’s time

zone; and

(B)  for filing by other means, when the clerk’s office is

scheduled to close.

(5)  ‘‘Next Day’’ Defined. The ‘‘next day’’ is  determined  by continuing to count forward when the period is measured after an event and backward when measured before an event.

(6) ‘‘Legal Holiday’’ Defined. ‘‘Legal holiday’’ means:

(A)  the day set aside by statute for observing New Year’s

Day, Martin Luther King Jr.’s Birthday, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, or Christmas Day;

(B)  any day declared a holiday by the President or Con-

gress; and

(C)   for periods that  are measured after  an event, any

other day declared a holiday by the state  where the dis- trict court is located.

(b)  EXTENDING TIME.

(1)  In General. When an act  may or must  be  done within a

specified time, the court may, for good cause, extend the time: (A)  with or without motion or notice if the court acts,

or if a request is made, before the original time or its ex- tension expires; or

(B)   on motion made after the time has expired if the

party failed to act because of  excusable neglect.

(2) Exceptions. A court must not extend the time to act under

Rules 50(b)  and (d), 52(b), 59(b), (d), and (e), and 60(b). (c)  MOTIONS, NOTICES OF HEARING, AND AFFIDAVITS.

(1)  In General. A  written motion and notice of  the hearing

must be  served at least 14  days before the time specified for the hearing, with the following exceptions:

(A)  when the motion may be  heard ex  parte;

(B)  when these rules set a different time; or

(C)   when a court  order—which a party  may, for good

cause, apply for ex  parte—sets a different time.

(2)  Supporting Affidavit.  Any affidavit supporting a motion must be  served with the motion. Except as Rule 59(c)  provides otherwise, any opposing affidavit  must  be   served at least 7 days before the hearing, unless the court permits service at another time.

(d)  ADDITIONAL TIME  AFTER  CERTAIN KINDS OF SERVICE. When a party may or must act within a specified time after service and service  is made  under  Rule  5(b)(2)(C), (D), (E), or (F),  3  days are added after the period would otherwise expire under Rule 6(a).

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

1,  1963; Feb. 28, 1966, eff. July 1,  1966; Dec. 4,  1967, eff. July 1,  1968; Mar. 1, 1971, eff. July 1, 1971; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29,

1985,  eff. Aug. 1,  1985;  Mar. 2,  1987,  eff. Aug. 1,  1987;  Apr. 26,  1999, eff. Dec. 1, 1999; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 25, 2005, eff. Dec.

1, 2005; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

TITLE III. PLEADINGS AND MOTIONS

Rule 7. Pleadings Allowed; Form of Motions and Other Papers

(a) PLEADINGS. Only these pleadings are allowed: (1) a complaint;

(2) an answer to a complaint;

Rule 7.1                   FEDERAL RULES OF  CIVIL PROCEDURE                                                                 12

(3)  an answer to a counterclaim designated as a counter- claim;

(4) an answer to a crossclaim;

(5) a third-party complaint;

(6) an answer to a third-party complaint; and

(7) if the court orders one, a reply to an answer. (b)  MOTIONS AND OTHER PAPERS.

(1)  In General. A  request for a court order must be  made by

motion. The motion must:

(A)  be  in writing unless made during a hearing or trial; (B)  state with particularity  the grounds for seeking the

order; and

(C)  state the relief sought.

(2)  Form. The rules governing captions and other matters  of

form in pleadings apply to motions and other papers.

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

1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 7.1.  Disclosure Statement

(a) WHO    MUST  FILE;  CONTENTS. A  nongovernmental corporate party must file 2 copies of  a disclosure statement that:

(1)  identifies any parent corporation and any publicly held

corporation owning 10% or more of  its stock; or

(2) states that there is no such corporation.

(b)  TIME TO  FILE; SUPPLEMENTAL FILING. A party must:

(1)  file the disclosure statement  with its first appearance,

pleading,  petition,  motion,  response, or  other  request  ad- dressed to the court; and

(2)  promptly file a supplemental statement  if any required

information changes.

(As  added Apr. 29, 2002, eff. Dec. 1, 2002; amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 8. General Rules of Pleading

(a) CLAIM FOR RELIEF.  A  pleading that  states a claim for relief must contain:

(1) a short and plain statement of  the grounds for the court’s

jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of  the claim showing that the

pleader is entitled to relief; and

(3)  a demand for the relief sought, which may include relief

in the alternative or different types of  relief. (b)  DEFENSES; ADMISSIONS AND DENIALS.

(1) In General. In responding to a pleading, a party must:

(A)   state  in short and plain terms its defenses to each

claim asserted against it; and

(B)  admit or deny the allegations asserted against it by

an opposing party.

(2) Denials—Responding to  the Substance. A denial must fairly

respond to the substance of  the allegation.

(3)  General and Specific Denials. A  party that intends in good

faith to deny all the allegations of  a pleading—including the jurisdictional grounds—may do  so  by a general denial. A party

that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.

(4)  Denying Part of   an  Allegation. A  party that  intends in

good faith to deny only part of  an allegation must admit the part that is true and deny the rest.

(5)   Lacking  Knowledge or   Information.  A   party that  lacks

knowledge or information sufficient to form a belief about the truth of  an allegation must so  state, and the statement has the effect of  a denial.

(6)  Effect of  Failing to  Deny. An   allegation—other than  one

relating to the amount of  damages—is admitted if a responsive pleading is required and the allegation is not denied. If a re- sponsive pleading is not required, an allegation is considered denied or avoided.

(c)  AFFIRMATIVE DEFENSES.

(1)  In General. In responding to a pleading, a party  must  af-

firmatively state any avoidance or affirmative defense, includ- ing:

• accord and satisfaction;

• arbitration and award;

• assumption of  risk;

• contributory negligence;

• duress;

• estoppel;

• failure of  consideration;

• fraud;

• illegality;

• injury by fellow servant;

• laches;

• license;

• payment;

• release;

• res judicata;

• statute of  frauds;

• statute of  limitations; and

• waiver.

(2)  Mistaken Designation. If a party mistakenly designates a

defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so. (d) PLEADING  TO   BE  CONCISE AND  DIRECT; ALTERNATIVE   STATE-

MENTS; INCONSISTENCY.

(1)  In General. Each allegation must be  simple, concise, and

direct. No  technical form is required.

(2)  Alternative Statements of  a  Claim or  Defense. A  party may

set out 2  or more statements  of   a claim or defense alter- natively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of  them is sufficient.

(3) Inconsistent Claims or Defenses. A party may state as many

separate claims or defenses as it  has, regardless of   consist- ency.

(e)  CONSTRUING PLEADINGS. Pleadings must be  construed so  as to

do  justice.

(As  amended Feb. 28,  1966,  eff. July 1,  1966;  Mar. 2,  1987,  eff. Aug.

1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 28, 2010, eff. Dec. 1, 2010.)

Rule 9. Pleading Special Matters

(a) CAPACITY OR  AUTHORITY TO  SUE; LEGAL EXISTENCE.

(1)  In General. Except when required  to show that the court has jurisdiction, a pleading need not allege:

(A)  a party’s capacity to sue or be  sued;

(B)  a party’s authority to sue or be  sued in a representa- tive capacity; or

(C)  the legal existence of  an organized association of  per- sons that is made a party.

(2)  Raising Those Issues. To  raise any of  those issues, a party must do  so  by a specific denial, which must state any support- ing facts that are peculiarly within the party’s knowledge.

(b)  FRAUD OR   MISTAKE; CONDITIONS OF MIND. In alleging fraud or mistake, a party must state with particularity the circumstances constituting  fraud  or  mistake.  Malice, intent,  knowledge, and other conditions of  a person’s mind may be  alleged generally.

(c)  CONDITIONS PRECEDENT. In pleading conditions  precedent,  it suffices to allege generally that  all conditions precedent have oc- curred or been performed. But  when denying that  a  condition precedent has occurred or been performed, a party must do  so  with particularity.

(d)  OFFICIAL  DOCUMENT OR  ACT. In pleading an official document or official act, it suffices to allege that the document was legally issued or the act legally done.

(e)  JUDGMENT.  In pleading a judgment or decision of  a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it suffices to plead the judgment or decision without showing jurisdiction to render it.

(f)  TIME  AND PLACE. An  allegation of  time or place is material when testing the sufficiency of  a pleading.

(g)  SPECIAL DAMAGES. If an item  of  special damage is claimed, it must be  specifically stated.

(h)  ADMIRALTY OR  MARITIME CLAIM.

(1)  How Designated. If a claim  for relief is within  the  admi- ralty or maritime jurisdiction and also within the court’s sub- ject-matter  jurisdiction on some other ground, the pleading may designate the claim as an admiralty or maritime claim for purposes of  Rules 14(c), 38(e), and 82 and the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. A claim cognizable only in the admiralty or maritime jurisdiction is an admiralty or maritime claim for those pur- poses, whether or not so  designated.

(2)  Designation for  Appeal. A  case that includes an admiralty or maritime claim within this subdivision (h)  is an admiralty case within 28 U.S.C. § 1292(a)(3).

(As   amended Feb. 28,  1966,  eff. July 1,  1966;  Dec. 4,  1967,  eff. July

1, 1968; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 11,  1997,  eff. Dec. 1,  1997;  Apr. 12,  2006,  eff. Dec. 1,  2006;  Apr.

30, 2007, eff. Dec. 1, 2007.)

Rule 10.  Form of Pleadings

(a) CAPTION; NAMES OF PARTIES. Every pleading must have a cap- tion with the court’s name, a title, a file number, and a Rule 7(a) designation. The title of  the complaint must name all the parties; the title of  other pleadings, after naming the first party on each side, may refer generally to other parties.

(b)  PARAGRAPHS; SEPARATE  STATEMENTS. A  party must state its

claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of  circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity,  each claim founded on a separate trans- action or occurrence—and each defense other than a denial—must be  stated in a separate count or defense.

(c)  ADOPTION BY  REFERENCE; EXHIBITS. A statement in a pleading

may be  adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of  a written instrument that is an exhibit to a pleading is a part of  the pleading for all pur- poses.

(As  amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 11.  Signing Pleadings, Motions, and Other Papers; Represen- tations to  the Court; Sanctions

(a) SIGNATURE. Every pleading, written  motion, and other paper must be  signed by at least one attorney of  record in the attorney’s name—or by a party personally if the party is unrepresented. The paper must state  the signer’s address, e-mail address, and tele- phone number. Unless a rule or statute  specifically states other- wise, a pleading need not be  verified or accompanied by an affida- vit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or par- ty’s attention.

(b)  REPRESENTATIONS  TO   THE  COURT. By  presenting to the court

a pleading, written  motion, or other paper—whether by signing, filing, submitting, or later  advocating it—an attorney  or unrep- resented party certifies that to the best of  the person’s knowledge,

information, and belief, formed after an inquiry reasonable under the circumstances:

(1)  it is not being presented for any improper purpose, such

as to harass, cause unnecessary delay, or needlessly increase the cost of  litigation;

(2) the claims, defenses, and other legal contentions are war-

ranted by existing law or by a nonfrivolous argument  for ex- tending, modifying, or reversing existing law or for establish- ing new law;

(3)  the  factual  contentions  have evidentiary  support  or, if

specifically so  identified, will likely have evidentiary support after a reasonable opportunity for further investigation or dis- covery; and

(4)  the denials of  factual contentions are warranted on the

evidence or, if specifically so  identified, are reasonably based on belief or a lack of  information.

(c)  SANCTIONS.

(1)  In General. If, after notice and a reasonable opportunity

to respond, the court determines that Rule 11(b)  has been vio- lated, the court may impose an appropriate sanction on any

attorney,  law firm, or party that  violated the rule or is re- sponsible for the violation. Absent exceptional circumstances, a law firm must  be   held jointly  responsible for a violation committed by its partner, associate, or employee.

(2)   Motion  for   Sanctions.  A   motion  for sanctions  must  be

made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be  served under Rule 5, but it must not be  filed or be  pre- sented to the  court  if the  challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets.  If warranted,  the  court  may award to  the  prevailing party  the reasonable expenses, including attorney’s  fees, in- curred for the motion.

(3)  On  the Court’s Initiative. On  its own, the court may order

an attorney,  law firm, or party  to show cause why conduct specifically described in the order has not violated Rule 11(b). (4)  Nature of  a  Sanction. A  sanction imposed under this rule

must be  limited to what suffices to deter repetition of  the con- duct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of   part or all of   the  reasonable attorney’s  fees and other expenses directly resulting from the violation.

(5) Limitations on  Monetary Sanctions. The court must not im-

pose a monetary sanction:

(A)    against   a  represented   party   for  violating   Rule

11(b)(2); or

(B)   on its  own, unless it  issued the  show-cause order

under  Rule  11(c)(3) before voluntary dismissal or settle- ment of  the claims made by or against the party that  is, or whose attorneys are, to be  sanctioned.

(6)  Requirements for  an Order. An  order imposing a sanction

must describe the sanctioned conduct and explain the basis for the sanction.

(d)   INAPPLICABILITY  TO   DISCOVERY. This rule  does not apply to

disclosures and discovery requests, responses, objections, and mo- tions under Rules 26 through 37.

(As  amended Apr. 28,  1983,  eff. Aug. 1,  1983;  Mar. 2,  1987,  eff. Aug.

1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 12.  Defenses  and Objections: When and How Presented;  Mo- tion for  Judgment on  the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

(a) TIME TO  SERVE A  RESPONSIVE PLEADING.

(1)  In General. Unless another  time  is specified by this rule

or a federal statute, the time for serving a responsive pleading is as follows:

(A)  A defendant must serve an answer:

(i)   within 21  days after  being served with the  sum-

mons and complaint; or

(ii) if it  has timely waived service under Rule 4(d),

within 60 days after the request for a waiver was sent,

or within 90  days after it  was sent to the defendant outside any judicial district of  the United States.

(B)  A  party must serve an answer to a counterclaim or

crossclaim  within  21  days after  being served with the pleading that states the counterclaim or crossclaim.

(C)  A  party must serve a reply to an answer within 21

days after being served with an order to reply, unless the order specifies a different time.

(2)  United States and Its Agencies, Officers, or  Employees Sued

in an Official Capacity. The United  States,  a  United  States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, coun- terclaim,  or crossclaim within 60  days after service on the United States attorney.

(3)  United States  Officers or  Employees Sued in an Individual

Capacity. A  United States officer or employee sued in an indi- vidual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within

60 days after service on the officer or employee or service on the United States attorney, whichever is later.

(4)  Effect of  a  Motion. Unless the court sets a different time,

serving a motion under this rule alters  these periods as fol- lows:

(A)  if the  court  denies the  motion  or postpones its  dis-

position until trial, the responsive pleading must be  served within 14 days after notice of  the court’s action; or

(B)   if the  court  grants  a  motion for a  more definite

statement, the responsive pleading must be  served within

14 days after the more definite statement is served.

(b)  HOW  TO   PRESENT DEFENSES. Every defense to a claim for re-

lief in any pleading must be  asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of  subject-matter jurisdiction;

(2) lack of  personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of  process;

(6) failure to state a claim upon which relief can be  granted;

and

(7) failure to join a party under Rule 19.

A  motion asserting any of   these defenses must  be   made before

pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that  does not require a responsive pleading, an opposing party may assert at trial  any defense to that  claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

(c)  MOTION FOR JUDGMENT  ON  THE PLEADINGS. After the pleadings

are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.

(d)  RESULT OF PRESENTING MATTERS OUTSIDE THE PLEADINGS. If,

on a motion under Rule 12(b)(6) or 12(c), matters outside the plead- ings are presented to and not excluded by the court, the motion must be  treated  as one for summary judgment under Rule 56.  All

parties must be  given a reasonable opportunity to present all the material that is pertinent to the motion.

(e)  MOTION FOR A  MORE DEFINITE  STATEMENT. A party  may move

for a more definite statement  of  a pleading to which a responsive pleading is allowed but which is so  vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of  and the details desired. If the court orders a more definite statement  and the order is not obeyed within 14 days after notice of  the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

(f)  MOTION TO   STRIKE. The court may strike from a pleading an

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2)  on motion made by a party  either  before responding to

the pleading or, if a response is not allowed, within 21  days after being served with the pleading.

(g)  JOINING  MOTIONS.

(1) Right to  Join. A motion under this rule may be  joined with

any other motion allowed by this rule.

(2)  Limitation on  Further Motions. Except as provided in Rule

12(h)(2) or  (3),  a party that  makes a motion under this rule must not make another motion under this rule raising a de- fense or objection that was available to the party but omitted from its earlier motion.

(h)  WAIVING AND PRESERVING  CERTAIN DEFENSES.

(1)  When Some Are  Waived. A  party waives any defense listed

in Rule 12(b)(2)–(5) by:

(A)  omitting it from a motion in the circumstances de-

scribed in Rule 12(g)(2); or

(B)  failing to either:

(i)  make it by motion under this rule; or

(ii)  include it  in  a  responsive pleading or  in  an

amendment  allowed  by  Rule  15(a)(1) as a  matter  of course.

(2) When to  Raise Others. Failure to state a claim upon which

relief can be  granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be  raised:

(A)  in any pleading allowed or ordered under Rule 7(a);

(B)  by a motion under Rule 12(c);  or

(C)  at trial.

(3) Lack of  Subject-Matter Jurisdiction. If the court determines

at  any time that  it  lacks subject-matter jurisdiction, the court must dismiss the action.

(i)  HEARING BEFORE TRIAL. If a party so  moves, any defense list-

ed  in Rule  12(b)(1)–(7)—whether made in a pleading or by motion— and a motion under Rule 12(c)  must be  heard and decided before trial unless the court orders a deferral until trial.

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

1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22,  1993,  eff. Dec. 1,  1993;  Apr. 17,  2000,  eff. Dec. 1,  2000;  Apr.

30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 13.  Counterclaim and Crossclaim

(a) COMPULSORY COUNTERCLAIM.

(1)  In General. A  pleading must state as a counterclaim any

claim that—at the time of  its service—the pleader has against an opposing party if the claim:

(A)   arises out of  the transaction  or occurrence that  is

the subject matter of  the opposing party’s claim; and

(B)  does not require adding another party over whom the

court cannot acquire jurisdiction.

(2) Exceptions. The pleader need not state the claim if:

(A)  when the action was commenced, the claim was the

subject of  another pending action; or

(B)  the opposing party sued on its claim by attachment

or other process that  did not establish personal jurisdic- tion over the pleader on that  claim, and the pleader does not assert any counterclaim under this rule.

(b)  PERMISSIVE  COUNTERCLAIM. A  pleading may state as a coun-

terclaim against an opposing party any claim that  is not compul- sory.

(c)  RELIEF  SOUGHT IN   A  COUNTERCLAIM. A  counterclaim need not

diminish or defeat the recovery sought by the opposing party. It may request relief that  exceeds in amount or differs in kind from the relief sought by the opposing party.

(d)  COUNTERCLAIM AGAINST  THE  UNITED  STATES.  These  rules  do

not expand the right to assert a counterclaim—or to claim a cred- it—against the United States or a United States officer or agency. (e)  COUNTERCLAIM MATURING OR   ACQUIRED AFTER PLEADING. The court may permit a party to file a supplemental pleading assert- ing a counterclaim that  matured or was acquired by the party

after serving an earlier pleading. (f)  [ABROGATED.]

(g)  CROSSCLAIM  AGAINST  A  COPARTY. A  pleading may state as a

crossclaim any claim by one party against a coparty if the claim arises out of   the transaction or occurrence that  is the subject matter of  the original action or of  a counterclaim, or if the claim relates to any property that is the subject matter of  the original action. The crossclaim may include a claim that the coparty is or may be  liable to the crossclaimant for all or part of  a claim as- serted in the action against the crossclaimant.

(h)  JOINING  ADDITIONAL PARTIES. Rules 19 and 20 govern the addi-

tion of  a person as a party to a counterclaim or crossclaim.

(i)  SEPARATE  TRIALS; SEPARATE  JUDGMENTS.  If the court orders

separate trials under Rule 42(b), it may enter judgment on a coun- terclaim or crossclaim under Rule 54(b)  when it has jurisdiction to do  so, even if the opposing party’s claims have been dismissed or otherwise resolved.

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

1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 14.  Third-Party Practice

(a) WHEN A  DEFENDING PARTY  MAY BRING IN  A  THIRD PARTY.

(1)  Timing of  the Summons and Complaint. A  defending party

may, as third-party plaintiff, serve a summons and complaint

on a nonparty who is or may be  liable to it for all or part of the claim against it.  But the third-party plaintiff must, by motion, obtain the court’s leave if it files the third-party com- plaint more than 14 days after serving its original answer.

(2)  Third-Party Defendant’s Claims and Defenses. The person served  with  the  summons  and  third-party   complaint—the

‘‘third-party defendant’’:

(A)    must  assert  any  defense against  the  third-party plaintiff’s claim under Rule 12;

(B)  must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert  any counter- claim against the third-party plaintiff under Rule 13(b)  or any  crossclaim  against  another  third-party   defendant under Rule 13(g);

(C)  may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff’s claim; and

(D)  may also assert against the plaintiff any claim aris- ing out of  the transaction or occurrence that is the subject matter  of   the  plaintiff’s claim against the  third-party plaintiff.

(3)  Plaintiff’s  Claims Against  a  Third-Party Defendant. The plaintiff may assert  against  the  third-party  defendant any claim arising out of  the transaction or occurrence that is the subject matter of  the plaintiff’s claim against the third-party plaintiff. The third-party  defendant must then assert any de- fense under Rule 12  and any counterclaim  under Rule 13(a), and may assert any counterclaim under Rule 13(b)  or any crossclaim under Rule 13(g).

(4)  Motion to  Strike, Sever, or  Try Separately. Any party may move to strike the third-party claim, to sever it, or to try it separately.

(5) Third-Party Defendant’s Claim Against a Nonparty. A third- party defendant may proceed under this rule against a non- party who is or may be  liable to the third-party defendant for all or part of  any claim against it.

(6)  Third-Party Complaint In Rem. If it  is within  the  admi- ralty  or maritime jurisdiction, a third-party complaint may be  in rem. In that event, a reference in this rule to the ‘‘sum- mons’’ includes the warrant of  arrest, and a reference to the defendant or third-party  plaintiff includes, when appropriate, a  person  who  asserts   a  right   under  Supplemental  Rule C(6)(a)(i) in the property arrested.

(b)   WHEN  A   PLAINTIFF   MAY BRING IN    A   THIRD PARTY. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do  so.

(c)  ADMIRALTY OR  MARITIME CLAIM.

(1)  Scope of  Impleader. If a plaintiff asserts an admiralty or maritime claim under Rule 9(h), the defendant or a person who asserts a right under Supplemental Rule C(6)(a)(i) may, as a third-party  plaintiff,  bring in  a  third-party  defendant who may be   wholly or partly  liable—either to the plaintiff or to the  third-party  plaintiff—for remedy over, contribution,  or otherwise on account of  the same transaction,  occurrence, or series of  transactions or occurrences.

(2)  Defending Against a  Demand for  Judgment for  the Plaintiff. The third-party  plaintiff may demand judgment in the plain- tiff’s favor against the third-party defendant. In that  event, the third-party  defendant must defend under Rule 12  against the  plaintiff’s  claim  as  well as  the  third-party  plaintiff’s claim; and the action proceeds as if the plaintiff had sued both the third-party defendant and the third-party plaintiff.

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

1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 17,  2000,  eff. Dec. 1,  2000;  Apr. 12,  2006,  eff. Dec. 1,  2006;  Apr.

30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 15.  Amended and Supplemental Pleadings

(a) AMENDMENTS BEFORE TRIAL.

(1)  Amending as  a  Matter of  Course. A  party may amend its

pleading once as a matter of  course within: (A)  21 days after serving it, or

(B)  if the pleading is one to which a responsive pleading

is required, 21 days after service of  a responsive pleading or 21 days after service of  a motion  under Rule 12(b), (e), or (f),  whichever is earlier.

(2)  Other Amendments. In all other cases, a party may amend

its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when jus- tice so  requires.

(3)  Time to  Respond. Unless the court orders otherwise, any

required response to an amended pleading must be  made with- in the time remaining to respond to the original pleading or within 14  days after service of  the amended pleading, which- ever is later.

(b)  AMENDMENTS DURING AND AFTER  TRIAL.

(1)  Based on  an Objection at Trial. If, at trial, a party objects

that  evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be  amended. The court should freely permit an amendment when doing so  will aid in presenting the merits and the objecting party fails to satisfy the court that  the evidence would prejudice that  party’s ac- tion or defense on the merits. The court may grant a continu- ance to enable the objecting party to meet the evidence.

(2)  For  Issues Tried by  Consent. When an issue not raised by

the pleadings is tried by the parties’ express or implied con- sent, it must be  treated in all respects as if raised in the plead- ings. A  party may move—at any time, even after judgment— to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not af- fect the result of  the trial of  that issue.

(c)  RELATION BACK OF AMENDMENTS.

(1)  When an  Amendment Relates Back.  An   amendment to a

pleading relates  back to  the  date of   the  original  pleading when:

(A)  the law that provides the applicable statute  of  limi-

tations allows relation back;

(B)  the amendment asserts a claim or defense that  arose

out of  the conduct, transaction,  or occurrence set out—or attempted to be  set out—in the original pleading; or

(C)  the amendment changes the party or the naming of the  party  against  whom a  claim  is  asserted,  if  Rule

15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be  brought in by amendment:

(i)  received such notice of  the action that it will not

be  prejudiced in defending on the merits; and

(ii) knew or  should have known that  the  action

would have been brought against it, but for a mistake concerning the proper party’s identity.

(2)  Notice to  the United States. When the United States or a

United States  officer or agency is added as a defendant by amendment, the notice requirements of  Rule  15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period, process was deliv- ered or mailed to the United States  attorney  or the United States  attorney’s designee, to  the  Attorney General of   the United States, or to the officer or agency.

(d)  SUPPLEMENTAL PLEADINGS. On  motion and reasonable notice,

the court may, on just terms, permit a party to serve a supple- mental pleading setting out any transaction, occurrence, or event that  happened after the date of  the pleading to be  supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that  the opposing party plead to the supplemental pleading within a specified time.

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

1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Pub. L. 102–198, § 11(a), Dec. 9, 1991, 105 Stat. 1626; Apr. 22, 1993, eff. Dec. 1,  1993;  Apr. 30,  2007,  eff. Dec. 1,  2007;  Mar. 26,  2009,  eff. Dec.

1, 2009.)

Rule 16.  Pretrial Conferences; Scheduling; Management

(a) PURPOSES   OF  A   PRETRIAL   CONFERENCE. In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial  conferences for such purposes as:

(1) expediting disposition of  the action;

(2) establishing early and continuing control so  that the case

will not be  protracted because of  lack of  management; (3) discouraging wasteful pretrial activities;

(4) improving the quality of  the trial through more thorough

preparation; and

(5) facilitating settlement. (b)  SCHEDULING.

(1)  Scheduling Order. Except in categories  of  actions exempt-

ed   by local rule,  the  district  judge—or a  magistrate  judge when authorized by local rule—must issue a scheduling order:

(A)  after receiving the parties’ report under Rule 26(f);  or

(B)  after consulting with the parties’ attorneys and any

unrepresented parties  at  a  scheduling conference or by telephone, mail, or other means.

(2)  Time to  Issue. The judge must issue the scheduling order

as soon as practicable, but in any event within the earlier of

120  days after  any defendant has been served with the com- plaint or 90 days after any defendant has appeared.

(3) Contents of  the Order.

(A)   Required Contents. The scheduling order must  limit

the time to join other parties, amend the pleadings, com- plete discovery, and file motions.

(B)  Permitted Contents. The scheduling order may:

(i)  modify the timing of  disclosures under Rules 26(a)

and 26(e)(1);

(ii) modify the extent of  discovery;

(iii) provide for disclosure or discovery of  electroni-

cally stored information;

(iv) include any agreements the parties reach for as-

serting claims of   privilege or of   protection as trial- preparation material after information is produced;

(v)   set  dates for pretrial  conferences and for trial;

and

(vi) include other appropriate matters.

(4) Modifying a Schedule. A schedule may be  modified only for

good cause and with the judge’s consent.

(c)  ATTENDANCE AND MATTERS FOR CONSIDERATION AT A  PRETRIAL

CONFERENCE.

(1)  Attendance. A  represented party must authorize at least

one  of   its  attorneys to  make stipulations and  admissions about all matters that can reasonably be  anticipated for dis- cussion at a pretrial conference. If appropriate, the court may require that a party or its representative be  present or reason- ably available by other means to consider possible settlement. (2)  Matters for  Consideration. At any pretrial conference, the

court may consider and take appropriate action on the follow- ing matters:

(A)  formulating and simplifying the issues, and eliminat-

ing frivolous claims or defenses;

(B)  amending the pleadings if necessary or desirable;

(C)   obtaining admissions and stipulations  about facts

and documents to avoid unnecessary proof, and ruling in advance on the admissibility of  evidence;

(D)  avoiding unnecessary proof and cumulative evidence,

and limiting the use of  testimony  under Federal Rule of

Evidence  702;

(E)  determining the appropriateness and timing of  sum-

mary adjudication under Rule 56;

(F) controlling  and scheduling discovery, including or-

ders affecting disclosures and discovery under Rule 26 and

Rules 29 through 37;

(G)  identifying witnesses and documents, scheduling the

filing  and  exchange of   any pretrial  briefs, and setting dates for further conferences and for trial;

(H)  referring matters to a magistrate judge or a master;

(I)  settling  the case and using special procedures to as-

sist in resolving the dispute when authorized by statute or local rule;

(J)  determining the  form and content  of   the pretrial

order;

(K)  disposing of  pending motions;

(L)  adopting special procedures for managing potentially

difficult or protracted actions that  may involve complex

issues, multiple  parties,  difficult legal questions, or un- usual proof problems;

(M)  ordering a separate trial under Rule 42(b)  of  a claim,

counterclaim, crossclaim, third-party claim, or particular issue;

(N)   ordering the presentation of   evidence early in the

trial  on a manageable issue that  might, on the evidence, be  the basis for a judgment as a matter of  law under Rule

50(a)  or a judgment on partial findings under Rule 52(c);

(O)  establishing a reasonable limit on the time allowed

to present evidence; and

(P) facilitating  in other ways the just, speedy, and inex-

pensive disposition of  the action.

(d)  PRETRIAL ORDERS. After any conference under this rule, the

court should issue an order reciting the action taken. This order controls the course of  the action unless the court modifies it.

(e)   FINAL  PRETRIAL   CONFERENCE  AND  ORDERS. The  court  may

hold a final pretrial conference to formulate a trial  plan, includ- ing a plan to facilitate the admission of  evidence. The conference must be  held as close to the start  of  trial  as is reasonable, and must be  attended by at least one attorney who will conduct the trial  for each party and by any unrepresented party. The court may modify the order issued after a final pretrial conference only to prevent manifest injustice.

(f)  SANCTIONS.

(1)  In General. On  motion or on its own, the court may issue

any     just      orders,      including      those      authorized      by     Rule

37(b)(2)(A)(ii)–(vii), if a party or its attorney:

(A)  fails to appear at a scheduling or other pretrial con-

ference;

(B)   is substantially  unprepared to participate—or does

not participate in good faith—in the conference; or

(C)  fails to obey a scheduling or other pretrial order.

(2)  Imposing Fees  and Costs. Instead  of  or in addition to any

other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses—including attorney’s fees—incurred because of  any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of  expenses unjust.

(As  amended Apr. 28,  1983,  eff. Aug. 1,  1983;  Mar. 2,  1987,  eff. Aug.

1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.)

TITLE IV. PARTIES

Rule 17.  Plaintiff and Defendant; Capacity; Public Officers

(a) REAL PARTY IN  INTEREST.

(1)  Designation in General. An   action must be  prosecuted in the name of  the real party in interest.  The following may sue in their own names without joining the person for whose bene- fit the action is brought:

(A)  an executor;

(B)  an administrator; (C)  a guardian;

(D)  a bailee;

(E)  a trustee of  an express trust;

(F) a party with whom or in whose name a contract has been made for another’s benefit; and

(G)  a party authorized by statute.

(2)  Action in the Name of  the United States for  Another’s Use  or Benefit. When a federal statute  so  provides, an action for an- other’s use or benefit must  be   brought in the  name of   the United States.

(3)  Joinder of  the Real Party in Interest. The court may not dismiss an action for failure to prosecute in the name of  the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be  substituted into the action. After ratification, join- der, or substitution, the action proceeds as if it had been origi- nally commenced by the real party in interest.

(b)  CAPACITY  TO   SUE OR   BE SUED. Capacity to sue or be  sued is determined as follows:

(1) for an individual who is not acting in a representative ca- pacity, by the law of  the individual’s domicile;

(2)  for a corporation, by the law under which it  was orga- nized; and

(3)  for all other parties, by the law of  the state where the court is located, except that:

(A)   a  partnership  or other  unincorporated association with no such capacity under that state’s law may sue or be sued in its common name to enforce a substantive right existing under the United States Constitution or laws; and (B)  28 U.S.C. §§ 754 and 959(a)  govern the capacity of  a re- ceiver appointed by a United States court to sue or be  sued

in a United States court.

(c)  MINOR OR  INCOMPETENT PERSON.

(1)  With a  Representative. The following representatives may sue or defend on behalf of  a minor or an incompetent person:

(A)  a general guardian; (B)  a committee;

(C)  a conservator; or

(D)  a like fiduciary.

(2)  Without a  Representative. A  minor or an incompetent per- son who does not have a duly appointed representative  may sue by a next friend or by a guardian ad litem. The court must appoint a  guardian ad litem—or issue another  appropriate order—to protect a minor or incompetent person who is unrep- resented in an action.

(d)  PUBLIC OFFICER’S  TITLE  AND NAME. A  public officer who sues or is sued in an official capacity may be   designated by official title rather than by name, but the court may order that the offi- cer’s name be  added.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.

20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Pub. L. 100–690, title VII, § 7049, Nov.

18, 1988, 102 Stat. 4401; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 18.  Joinder of Claims

(a)  IN   GENERAL.  A   party  asserting  a  claim,  counterclaim, crossclaim, or third-party claim may join, as independent or alter- native claims, as many claims as it has against an opposing party. (b)  JOINDER  OF CONTINGENT CLAIMS. A party may join two claims even though one of  them is contingent on the disposition of  the other; but the court may grant relief only in accordance with the parties’ relative substantive rights. In particular,  a plaintiff may state  a claim for money and a claim to set aside a conveyance that  is fraudulent as to that  plaintiff, without first obtaining a

judgment for the money.

(As  amended Feb. 28,  1966,  eff. July 1,  1966;  Mar. 2,  1987,  eff. Aug.

1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 19.  Required Joinder of Parties

(a) PERSONS REQUIRED TO  BE JOINED  IF FEASIBLE.

(1) Required Party. A person who is subject to service of  proc-

ess and whose joinder will not deprive the court  of  subject- matter jurisdiction must be  joined as a party if:

(A)   in that  person’s absence, the  court cannot accord

complete relief among existing parties; or

(B)  that person claims an interest relating to the subject

of  the action and is so  situated that disposing of  the action in the person’s absence may:

(i)   as a practical matter  impair or impede the  per-

son’s ability to protect the interest; or

(ii) leave an existing party subject to a substantial

risk of  incurring double, multiple, or otherwise incon- sistent obligations because of  the interest.

(2)  Joinder by  Court Order. If a person has not been joined as

required, the  court must order that  the  person be   made a party. A person who refuses to join as a plaintiff may be  made either a defendant or, in a proper case, an involuntary plain- tiff.

(3)  Venue. If a joined party objects to venue and the joinder

would make  venue improper, the  court  must  dismiss that party.

(b)  WHEN  JOINDER  IS NOT FEASIBLE. If a person who is required

to be  joined if feasible cannot be  joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be  dismissed. The factors for the court to consider include:

(1)  the extent to which a judgment rendered in the person’s

absence might prejudice that person or the existing parties;

(2)  the extent to which any prejudice could be   lessened or

avoided by:

(A)  protective provisions in the judgment;

(B)  shaping the relief; or

(C)  other measures;

(3)   whether  a  judgment  rendered in  the  person’s absence

would be  adequate; and

(4)  whether the plaintiff would have an adequate remedy if

the action were dismissed for nonjoinder.

(c)   PLEADING  THE  REASONS  FOR  NONJOINDER. When asserting a

claim for relief, a party must state:

(1)  the name, if known, of  any person who is required to be joined if feasible but is not joined; and

(2) the reasons for not joining that person.

(d)  EXCEPTION FOR CLASS ACTIONS. This rule is subject to Rule

23.

(As  amended Feb. 28,  1966,  eff. July 1,  1966;  Mar. 2,  1987,  eff. Aug.

1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 20.  Permissive Joinder of Parties

(a) PERSONS WHO  MAY JOIN  OR  BE JOINED.

(1)  Plaintiffs. Persons may join in one action as plaintiffs if:

(A)  they assert any right to relief jointly, severally, or

in the alternative  with respect to or arising out of   the same transaction,  occurrence, or series of  transactions or occurrences; and

(B)  any question of  law or fact common to all plaintiffs

will arise in the action.

(2)  Defendants. Persons—as well as a vessel, cargo, or other

property subject to admiralty  process in rem—may be  joined in one action as defendants if:

(A)  any right to relief is asserted against them jointly,

severally, or in the alternative with respect to or arising out of  the same transaction, occurrence, or series of  trans- actions or occurrences; and

(B)  any question of  law or fact common to all defendants

will arise in the action.

(3)  Extent of  Relief. Neither a plaintiff nor a defendant need

be  interested in obtaining or defending against all the relief demanded. The court  may grant  judgment to  one or more plaintiffs according to their  rights, and against one or more defendants according to their liabilities.

(b)  PROTECTIVE MEASURES. The court  may issue orders—includ-

ing an order for separate trials—to protect a party against embar- rassment, delay, expense, or other prejudice that  arises from in- cluding a person against whom the party asserts no claim and who asserts no claim against the party.

(As  amended Feb. 28,  1966,  eff. July 1,  1966;  Mar. 2,  1987,  eff. Aug.

1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 21.  Misjoinder and Nonjoinder of Parties

Misjoinder of  parties is not a ground for dismissing an action. On   motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.

(As  amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 22.  Interpleader

(a) GROUNDS.

(1)  By a  Plaintiff. Persons with claims that  may expose a

plaintiff to double or multiple liability may be  joined as de- fendants and required to interplead. Joinder for interpleader is proper even though:

(A)  the claims of  the several claimants, or the titles on

which their claims depend, lack a common origin or are adverse and independent rather than identical; or

(B)   the plaintiff denies liability  in whole or in part to any or all of  the claimants.

(2)  By a  Defendant. A  defendant exposed to similar liability

may seek interpleader through a crossclaim or counterclaim. (b)  RELATION TO   OTHER RULES AND STATUTES. This rule supple- ments—and does not limit—the joinder of  parties allowed by Rule

20.  The remedy this rule provides is in addition to—and does not supersede or limit—the remedy provided by 28 U.S.C. §§ 1335,  1397, and 2361. An  action under those statutes must be  conducted under these rules.

(As  amended Dec. 29,  1948,  eff. Oct. 20,  1949; Mar. 2,  1987,  eff. Aug.

1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 23.  Class Actions

(a) PREREQUISITES. One or more members of  a class may sue or be  sued as representative parties on behalf of  all members only if: (1)  the class is so  numerous that  joinder of  all members is

impracticable;

(2)  there are questions of  law or fact common to the class; (3)  the claims or defenses of  the representative parties are

typical of  the claims or defenses of  the class; and

(4)  the representative parties will fairly and adequately pro-

tect the interests of  the class.

(b)  TYPES  OF CLASS ACTIONS. A  class action may be  maintained

if Rule 23(a)  is satisfied and if:

(1)   prosecuting  separate  actions  by or  against  individual

class members would create a risk of:

(A)  inconsistent or varying adjudications with respect to

individual class members that  would establish incompat- ible standards of  conduct for the party opposing the class; or

(B)  adjudications with respect to individual  class mem-

bers that,  as a practical matter,  would be   dispositive  of the interests of  the other members not parties to the indi- vidual adjudications or would substantially  impair or im- pede their ability to protect their interests;

(2)  the party opposing the class has acted or refused to act

on grounds that apply generally to the class, so  that final in- junctive  relief or corresponding declaratory  relief is appro- priate respecting the class as a whole; or

(3)  the court finds that the questions of  law or fact common

to  class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters  pertinent to these findings in- clude:

(A)  the class members’ interests in individually control-

ling the prosecution or defense of  separate actions;

(B)   the extent and nature of  any litigation  concerning

the controversy already begun by or against  class mem- bers;

(C)   the  desirability or undesirability of   concentrating

the litigation of  the claims in the particular forum; and

(D)  the likely difficulties in managing a class action.

(c)  CERTIFICATION  ORDER; NOTICE TO   CLASS MEMBERS; JUDGMENT; ISSUES CLASSES; SUBCLASSES.

(1) Certification Order.

(A)   Time to  Issue. At an early practicable time after a

person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.

(B)  Defining the Class; Appointing  Class Counsel. An  order

that certifies a class action must define the class and the class claims, issues, or defenses, and must  appoint class counsel under Rule 23(g).

(C)  Altering or  Amending the Order. An  order that grants

or denies class certification may be  altered or amended be- fore final judgment.

(2) Notice.

(A)   For   (b)(1)  or   (b)(2)  Classes.  For  any class certified

under  Rule  23(b)(1) or  (b)(2), the court may direct appro- priate notice to the class.

(B)  For  (b)(3) Classes. For any class certified under Rule

23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, includ- ing individual notice to all members who can be  identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language:

(i)  the nature of  the action;

(ii) the definition of  the class certified;

(iii) the class claims, issues, or defenses;

(iv) that  a class member may enter an appearance

through an attorney if the member so  desires;

(v)   that  the court will exclude from the class any

member who requests exclusion;

(vi) the  time  and manner for requesting exclusion;

and

(vii) the binding effect of  a class judgment on mem-

bers under Rule 23(c)(3).

(3) Judgment. Whether or not favorable to the class, the judg-

ment in a class action must:

(A)  for any class certified under Rule 23(b)(1) or (b)(2), in-

clude and describe those whom the court finds to be  class members; and

(B)  for any class certified under Rule 23(b)(3), include and

specify or describe those to whom the Rule 23(c)(2) notice was directed, who have not requested exclusion, and whom the court finds to be  class members.

(4)   Particular Issues. When appropriate,  an  action  may  be

brought or maintained as a class action with respect to par- ticular issues.

(5)  Subclasses. When appropriate, a class may be  divided into

subclasses that are each treated as a class under this rule. (d)  CONDUCTING THE ACTION.

(1)  In General. In conducting  an action  under this rule, the

court may issue orders that:

(A)   determine  the  course of   proceedings or  prescribe

measures to prevent undue repetition or complication in presenting evidence or argument;

(B)  require—to protect class members and fairly conduct the action—giving appropriate notice to some or all class members of:

(i)  any step in the action;

(ii) the proposed extent of  the judgment; or

(iii) the  members’ opportunity  to  signify whether

they consider the representation fair and adequate, to intervene and present claims or defenses, or to other- wise come into the action;

(C)  impose conditions on the representative parties or on

intervenors;

(D)  require that  the pleadings be  amended to eliminate

allegations  about  representation  of   absent  persons  and that the action proceed accordingly; or

(E)  deal with similar procedural matters.

(2)   Combining  and  Amending  Orders.  An   order  under  Rule

23(d)(1) may  be  altered or amended from time to time and may be  combined with an order under Rule 16.

(e)   SETTLEMENT,  VOLUNTARY  DISMISSAL,  OR    COMPROMISE. The

claims, issues, or defenses of  a certified class may be  settled, vol- untarily  dismissed, or  compromised only  with  the  court’s  ap- proval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:

(1)  The court must direct notice in a reasonable manner to

all class members who would be  bound by the proposal.

(2)  If the proposal would bind class members, the court may

approve it only after a hearing and on finding that  it is fair, reasonable, and adequate.

(3)  The parties seeking approval must file a statement  iden-

tifying any agreement made in connection with the proposal. (4)  If the  class action  was previously certified under Rule

23(b)(3), the court may refuse to approve a settlement  unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request ex- clusion but did not do  so.

(5)  Any class member may object to the proposal if it  re-

quires court approval under this subdivision (e);  the objection may be  withdrawn only with the court’s approval.

(f)  APPEALS. A  court of  appeals may permit an appeal from an

order granting or denying class-action certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered. An  appeal does not stay proceedings in the district  court unless the district  judge or the court of  appeals so  orders.

(g)  CLASS COUNSEL.

(1)  Appointing Class Counsel. Unless a statute provides other-

wise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court:

(A)  must consider:

(i)  the work counsel has done in identifying or inves-

tigating potential claims in the action;

(ii) counsel’s experience in handling class actions,

other complex litigation,  and the types of  claims as- serted in the action;

(iii) counsel’s knowledge of  the applicable law; and

31                              FEDERAL RULES OF  CIVIL PROCEDURE

Rule 23.1

(iv) the resources that  counsel will commit to rep- resenting the class;

(B)  may consider any other matter pertinent to counsel’s

ability to fairly and adequately represent the interests of

the class;

(C)  may order potential class counsel to provide informa-

tion on any subject pertinent to the appointment and to propose terms for attorney’s fees and nontaxable costs;

(D)  may include in the appointing order provisions about

the  award of   attorney’s  fees or  nontaxable  costs  under

Rule 23(h); and

(E)  may make further orders in connection with the ap-

pointment.

(2) Standard for  Appointing Class Counsel. When one applicant

seeks appointment as class counsel, the  court  may appoint that  applicant only if the applicant is adequate under Rule

23(g)(1) and  (4).  If more than one adequate applicant seeks ap- pointment, the court must appoint the applicant best able to represent the interests of  the class.

(3) Interim Counsel. The court may designate interim  counsel

to act on behalf of  a putative class before determining whether to certify the action as a class action.

(4)  Duty of  Class Counsel. Class counsel must fairly  and ade-

quately represent the interests of  the class.

(h)  ATTORNEY’S  FEES  AND NONTAXABLE COSTS. In a certified class

action, the court may award reasonable attorney’s fees and non- taxable costs that  are authorized by law or by the parties’ agree- ment. The following procedures apply:

(1) A claim for an award must be  made by motion under Rule

54(d)(2), subject to the provisions of  this subdivision (h), at a time the court sets. Notice of  the motion must be  served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.

(2)   A   class  member, or  a  party  from whom payment  is

sought, may object to the motion.

(3) The court may hold a hearing and must find the facts and

state its legal conclusions under Rule 52(a).

(4)  The court may refer issues related to the amount of  the

award to a special master or a magistrate  judge, as provided in Rule 54(d)(2)(D).

(As  amended Feb. 28,  1966,  eff. July 1,  1966;  Mar. 2,  1987,  eff. Aug.

1, 1987; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 23.1.  Derivative Actions

(a) PREREQUISITES. This rule applies when one or more share- holders or members of  a corporation or an unincorporated associa- tion bring a derivative action to enforce a right that the corpora- tion or association may properly assert but has failed to enforce. The derivative action may not be   maintained if it appears that the plaintiff does not fairly and adequately represent the interests of  shareholders or members who are similarly situated  in enforc- ing the right of  the corporation or association.

(b)  PLEADING REQUIREMENTS. The complaint must be  verified and

must:

Rule 23.2                 FEDERAL RULES OF  CIVIL PROCEDURE                                                                 32

(1)  allege that  the plaintiff was a shareholder or member at the time of  the transaction complained of,  or that the plain- tiff’s share or membership later devolved on it by operation of law;

(2)  allege that the action is not a collusive one to confer ju-

risdiction that the court would otherwise lack; and

(3) state with particularity:

(A)  any effort by the  plaintiff  to obtain  the  desired ac-

tion  from the  directors or comparable authority  and, if necessary, from the shareholders or members; and

(B)  the reasons for not obtaining the action or not mak-

ing the effort.

(c)   SETTLEMENT,  DISMISSAL,  AND COMPROMISE. A  derivative  ac-

tion may be  settled, voluntarily  dismissed, or compromised only with the court’s approval. Notice of  a proposed settlement,  vol- untary dismissal, or compromise must be  given to shareholders or members in the manner that the court orders.

(As  added Feb. 28, 1966, eff. July 1,  1966; amended Mar. 2,  1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 23.2.  Actions Relating to  Unincorporated Associations

This rule applies to an action brought by or against the mem- bers of  an unincorporated association as a class by naming certain members as representative parties. The action may be  maintained only if it appears that those parties will fairly and adequately pro- tect the interests of  the association and its members. In conduct- ing the action, the court may issue any appropriate orders cor- responding  with those  in Rule 23(d), and the  procedure  for settle- ment, voluntary dismissal, or compromise must correspond with the procedure in Rule 23(e).

(As  added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 24.  Intervention

(a) INTERVENTION  OF  RIGHT. On  timely motion, the court must permit anyone to intervene who:

(1)  is given an unconditional right to intervene by a federal

statute; or

(2) claims an interest relating to the property or transaction

that is the subject of  the action, and is so  situated that dispos- ing of  the action may as a practical matter impair or impede the movant’s ability to protect its interest,  unless existing parties adequately represent that interest.

(b)  PERMISSIVE INTERVENTION.

(1) In General. On  timely motion, the court may permit any-

one to intervene who:

(A)  is given a conditional right to intervene by a federal

statute; or

(B)  has a claim or defense that  shares with the main ac-

tion a common question of  law or fact.

(2)  By a  Government Officer or  Agency. On  timely motion, the

court may permit a federal or state  governmental officer or agency to intervene if a party’s  claim  or defense is based on: (A)  a statute or executive order administered by the offi-

cer or agency; or

(B)  any regulation, order, requirement, or agreement is- sued or made under the statute or executive order.

(3)  Delay or  Prejudice. In exercising its discretion, the court

must consider whether the intervention  will unduly delay or prejudice the adjudication of  the original parties’ rights.

(c)  NOTICE AND PLEADING  REQUIRED. A motion to intervene must

be  served on the parties as provided in Rule 5.  The motion must state the grounds for intervention and be  accompanied by a plead- ing that  sets out the claim or defense for which intervention is sought.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.

20, 1949; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 12,

2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 25.  Substitution of Parties

(a) DEATH.

(1) Substitution if the Claim Is  Not  Extinguished. If a party dies

and the claim is not extinguished, the court may order substi- tution of  the proper party. A  motion for substitution  may be made by any party or by the decedent’s successor or represent- ative. If the motion is not made within 90 days after service of  a statement noting the death, the action by or against the decedent must be  dismissed.

(2)  Continuation Among the Remaining Parties. After a party’s

death, if the right sought to be  enforced survives only to or against the remaining parties, the action does not abate, but proceeds in  favor of   or against  the  remaining parties.  The death should be  noted on the record.

(3)  Service. A  motion to substitute, together with a notice of

hearing, must be  served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4.  A  statement noting death must be   served in the  same manner. Service may be made in any judicial district.

(b)   INCOMPETENCY. If a party  becomes incompetent, the court

may, on motion, permit the action to be  continued by or against the party’s representative. The motion must be  served as provided in Rule 25(a)(3).

(c)  TRANSFER OF INTEREST. If an interest  is transferred, the ac-

tion may be  continued by or against the original party unless the court, on motion, orders the transferee to be  substituted in the ac- tion or joined with the original party. The motion must be  served as provided in Rule 25(a)(3).

(d)  PUBLIC OFFICERS; DEATH OR  SEPARATION FROM OFFICE. An  ac-

tion does not abate when a public officer who is a party in an offi- cial capacity dies, resigns, or otherwise ceases to hold office while

the action is pending. The officer’s successor is automatically sub- stituted as a party. Later proceedings should be  in the substituted party’s name, but any misnomer not affecting the parties’ sub- stantial rights must be  disregarded. The court may order substi- tution at any time, but the absence of  such an order does not af- fect the substitution.

(As  amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July

19, 1961; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)

TITLE V.  DISCLOSURES  AND DISCOVERY

Rule 26.  Duty to  Disclose; General Provisions Governing Discovery

(a) REQUIRED DISCLOSURES. (1) Initial Disclosure.

(A)  In General. Except as exempted by Rule 26(a)(1)(B) or

as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i)  the name and, if known, the address and telephone

number of  each individual likely to have discoverable information—along with the subjects of  that informa- tion—that the disclosing party may use to support its claims or defenses, unless the use would be  solely for impeachment;

(ii) a copy—or a description  by category  and loca-

tion—of all documents, electronically stored informa- tion, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii)  a  computation  of   each  category  of   damages

claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the  documents or other evidentiary material,  unless privileged or protected from disclosure, on which each computation  is based, including materials  bearing on the nature and extent of  injuries suffered; and

(iv) for inspection and copying as under Rule 34, any

insurance agreement  under which an insurance busi- ness may be  liable to satisfy all or part of  a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

(B)  Proceedings Exempt from Initial Disclosure. The follow-

ing proceedings are exempt from initial disclosure:

(i)  an action for review on an administrative  record;

(ii) a forfeiture action in rem arising from a federal

statute;

(iii) a petition  for habeas corpus or any other pro-

ceeding to challenge a criminal conviction or sentence; (iv) an action brought without an attorney by a per- son in the custody of  the United States, a state, or a

state subdivision;

(v)  an action to enforce or quash an administrative

summons or subpoena;

(vi) an action by the United States to recover benefit

payments;

(vii) an action by the United States to collect on a

student loan guaranteed by the United States;

(viii) a proceeding ancillary to a proceeding in an-

other court; and

(ix) an action to enforce an arbitration award.

(C)  Time for  Initial  Disclosures—In General. A  party must

make the initial disclosures at or within 14 days after the parties’ Rule 26(f)  conference unless a different time is set

by stipulation  or court  order, or unless a party  objects during the conference that  initial  disclosures are not ap- propriate in this action and states the objection in the proposed discovery plan. In ruling  on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.

(D)    Time  for    Initial   Disclosures—For  Parties  Served  or

Joined  Later.  A   party  that   is  first  served or  otherwise joined after the Rule 26(f)  conference must make the ini- tial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order. (E)   Basis  for   Initial   Disclosure;  Unacceptable   Excuses.  A party must make its initial disclosures based on the infor-

mation then reasonably available to it. A  party is not ex- cused from making its disclosures because it has not fully investigated the case or because it  challenges the suffi- ciency of  another party’s disclosures or because another party has not made its disclosures.

(2) Disclosure of  Expert Testimony.

(A)  In General. In addition to the disclosures required by

Rule 26(a)(1), a party must disclose to the other parties the identity of  any witness it may use at trial to present evi- dence under Federal Rule of  Evidence 702, 703, or 705.

(B)  Witnesses Who Must  Provide a  Written Report. Unless

otherwise stipulated or ordered by the court, this disclo- sure must be   accompanied by a written  report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly in- volve giving expert testimony. The report must contain:

(i)  a complete statement of  all opinions the witness

will express and the basis and reasons for them;

(ii) the facts or data considered by the witness in

forming them;

(iii) any exhibits that  will be  used to summarize or

support them;

(iv) the  witness’s qualifications,  including a list  of

all publications authored in the previous 10 years;

(v)  a list of  all other cases in which, during the pre-

vious 4 years, the witness testified as an expert at trial or by deposition; and

(vi) a statement  of  the compensation to be  paid for

the study and testimony in the case.

(C)  Witnesses Who Do  Not  Provide a  Written Report. Unless

otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:

(i)   the  subject matter  on which the  witness is ex-

pected to present evidence under Federal Rule of  Evi- dence 702, 703, or 705; and

(ii) a summary of  the facts and opinions to which the

witness is expected to testify.

(D)  Time to  Disclose Expert Testimony.  A party must make

these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the dis- closures must be  made:

(i)  at least 90 days before the date set for trial or for the case to be  ready for trial; or

(ii) if the evidence is intended solely to contradict or

rebut evidence on the same subject matter  identified

by another party under Rule 26(a)(2)(B) or (C),   within

30 days after the other party’s disclosure.

(E)  Supplementing the Disclosure. The parties must supple-

ment these disclosures when required under Rule 26(e). (3) Pretrial Disclosures.

(A)  In General. In addition to the disclosures required by

Rule  26(a)(1) and (2),  a party must provide to the other par- ties and promptly file the following information about the evidence that  it may present at trial other than solely for impeachment:

(i)  the name and, if not previously provided, the ad-

dress  and  telephone  number  of   each  witness—sepa- rately identifying those the party expects to present and those it may call if the need arises;

(ii) the designation of  those  witnesses whose testi-

mony the party expects to present by deposition and, if not taken stenographically, a transcript of  the perti- nent parts of  the deposition; and

(iii) an identification of  each document or other ex-

hibit, including summaries of  other  evidence—sepa- rately identifying those items the party expects to offer and those it may offer if the need arises.

(B)   Time  for   Pretrial  Disclosures; Objections.  Unless  the

court orders otherwise, these disclosures must be  made at least 30  days before trial.  Within 14  days after they are made, unless the court sets a different time, a party may serve and promptly file a list of  the following objections: any objections to the use under Rule 32(a)  of  a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be  made to the admissibility of  materials identified under Rule 26(a)(3)(A)(iii). An  objection not so  made—except for one under Federal Rule of  Evidence 402  or 403—is  waived unless excused by the court for good cause.

(4) Form of  Disclosures. Unless the court orders otherwise, all

disclosures under Rule 26(a)   must be   in writing, signed, and served.

(b)  DISCOVERY SCOPE AND LIMITS.

(1) Scope in General. Unless otherwise limited by court order,

the scope of  discovery is as follows: Parties may obtain discov- ery regarding any nonprivileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of  any documents or other tangible things and the identity and location of  persons who know  of   any  discoverable matter. For good cause, the court may order discovery of  any matter relevant to the sub- ject matter involved in the action. Relevant information need not be  admissible at the trial if the discovery appears reason- ably calculated to  lead to  the  discovery of   admissible  evi- dence. All discovery is subject to the limitations  imposed by Rule 26(b)(2)(C).

(2) Limitations on  Frequency and Extent.

(A)   When Permitted. By   order, the court may alter the limits in these rules on the number of  depositions and in- terrogatories or on the length of  depositions under Rule 30. By  order or local rule, the court may also limit the num- ber of  requests  under Rule 36.

(B)   Specific Limitations  on   Electronically Stored Informa- tion. A  party need not provide discovery of  electronically stored information from sources that  the party identifies as not reasonably accessible because of  undue burden or cost. On   motion to compel discovery or for a protective order, the party from whom discovery is sought must show that  the information is not reasonably accessible because of  undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limita- tions of  Rule  26(b)(2)(C). The court may specify conditions for the discovery.

(C)  When Required. On  motion or on its own, the court must limit the frequency or extent of  discovery otherwise allowed by these rules or by local rule if it  determines that:

(i)  the discovery sought is unreasonably cumulative or duplicative,  or can be   obtained from some other source that  is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample oppor- tunity  to obtain the information by discovery in the action; or

(iii) the burden or expense of  the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ re- sources, the importance of  the issues at stake in the action, and the importance of  the discovery in resolv- ing the issues.

(3) Trial Preparation: Materials.

(A)   Documents and  Tangible Things.  Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of  litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or  agent).  But,  subject  to  Rule  26(b)(4), those materials may be  discovered if:

(i)    they   are   otherwise  discoverable  under  Rule

26(b)(1); and

(ii) the party shows that  it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

(B)  Protection Against Disclosure. If the court orders dis- covery of  those materials, it must protect against disclo- sure of  the mental impressions, conclusions, opinions, or legal theories of  a party’s attorney or other representative concerning the litigation.

(C)  Previous Statement. Any party or other person may, on request and without the required showing, obtain the person’s own previous statement  about the action or its subject matter.  If the request is refused, the person may move for  a  court  order,  and  Rule  37(a)(5) applies to the award of  expenses. A previous statement is either:

(i)  a written statement that the person has signed or

otherwise adopted or approved; or

(ii)  a  contemporaneous  stenographic,  mechanical,

electrical,  or  other  recording—or a  transcription  of it—that  recites  substantially  verbatim the  person’s oral statement.

(4) Trial Preparation: Experts.

(A)  Deposition of  an Expert Who May Testify. A party may

depose any person who has been identified as an expert whose  opinions   may   be    presented  at   trial.   If  Rule

26(a)(2)(B) requires a report from the expert, the deposition may be  conducted only after the report is provided.

(B)  Trial-Preparation Protection for  Draft Reports or Disclo-

sures. Rules  26(b)(3)(A) and  (B)  protect drafts of  any report or disclosure required under Rule 26(a)(2), regardless of  the form in which the draft is recorded.

(C)   Trial-Preparation  Protection  for   Communications  Be-

tween   a    Party’s  Attorney  and  Expert  Witnesses. Rules

26(b)(3)(A) and  (B)   protect  communications between the party’s attorney and any witness required to provide a re- port  under  Rule  26(a)(2)(B), regardless of  the form of  the communications, except to the extent  that  the commu- nications:

(i)  relate to compensation for the expert’s study or

testimony;

(ii) identify facts or data that the party’s attorney

provided and that the expert considered in forming the opinions to be  expressed; or

(iii) identify assumptions that the party’s attorney

provided and that  the expert relied on in forming the opinions to be  expressed.

(D)    Expert  Employed  Only  for    Trial  Preparation. Ordi-

narily, a party may not, by interrogatories or deposition, discover facts  known or opinions held by an expert  who has been retained or specially employed by another party

in anticipation of  litigation or to prepare for trial and who is not expected to be   called as a witness at trial.  But a party may do  so  only:

(i)  as provided in Rule 35(b);  or

(ii)  on  showing  exceptional  circumstances   under

which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

(E)  Payment. Unless manifest injustice  would result, the

court must require that the party seeking discovery:

(i)  pay the expert a reasonable fee  for time spent in

responding to discovery under Rule 26(b)(4)(A) or  (D);

and

(ii) for discovery under (D), also pay the other party

a fair portion of  the fees and expenses it reasonably in- curred in obtaining the expert’s facts and opinions.

(5)  Claiming Privilege or  Protecting Trial-Preparation Materials. (A)  Information Withheld. When a party  withholds infor- mation otherwise discoverable by claiming that  the infor- mation is privileged or subject to protection as trial-prep-

aration material, the party must:

(i)  expressly make the claim; and

(ii) describe the  nature  of   the  documents,  commu-

nications,  or tangible things not produced or dis- closed—and do  so  in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

(B)  Information Produced. If information produced in dis-

covery is subject to a claim of  privilege or of  protection as trial-preparation material,  the  party  making the  claim may notify any party that received the information of  the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take rea- sonable steps to retrieve the information if the party dis- closed it before being notified; and may promptly present the information to the court under seal for a determina- tion of  the claim. The producing party must preserve the information until the claim is resolved.

(c)  PROTECTIVE ORDERS.

(1)  In General. A  party  or any person from whom discovery

is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposi- tion will be   taken. The motion must include a certification that  the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment,  oppression, or undue burden or expense, in- cluding one or more of  the following:

(A)  forbidding the disclosure or discovery;

(B)   specifying terms,  including time and place, for the

disclosure or discovery;

(C)  prescribing a discovery method other than  the one

selected by the party seeking discovery;

(D)  forbidding inquiry into certain matters,  or limiting

the scope of  disclosure or discovery to certain matters;

(E)   designating  the  persons who may be   present  while

the discovery is conducted;

(F) requiring that a deposition be  sealed and opened only

on court order;

(G)  requiring that a trade secret or other confidential re-

search, development, or commercial information not be  re- vealed or be  revealed only in a specified way; and

(H)  requiring that  the parties simultaneously file speci-

fied documents or information  in sealed envelopes, to be opened as the court directs.

(2)  Ordering Discovery. If a motion for a protective order is

wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.

(3)  Awarding Expenses. Rule  37(a)(5) applies  to  the  award  of expenses.

(d)  TIMING AND SEQUENCE OF DISCOVERY.

(1)  Timing. A  party may not seek discovery from any source

before the parties have conferred as required by Rule 26(f),  ex- cept in a proceeding exempted from initial  disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipula- tion, or by court order.

(2)  Sequence. Unless, on motion,  the  court  orders otherwise

for the parties’ and witnesses’ convenience and in the interests of  justice:

(A)  methods of  discovery may be  used in any sequence;

and

(B)   discovery by one party does not require any other

party to delay its discovery.

(e)  SUPPLEMENTING  DISCLOSURES AND RESPONSES.

(1) In General. A party who has made a disclosure under Rule

26(a)—or who has  responded  to an interrogatory, request for production, or request for admission—must supplement or cor- rect its disclosure or response:

(A)  in a timely manner if the party learns that in some

material  respect the disclosure or response is incomplete or incorrect, and if the additional or corrective informa- tion has not otherwise been made known to the other par- ties during the discovery process or in writing; or

(B)  as ordered by the court.

(2)  Expert Witness. For an expert whose report  must be  dis-

closed  under  Rule  26(a)(2)(B), the party’s duty to supplement extends both to information included in the report and to in- formation given during the expert’s deposition. Any additions or changes to this information must be  disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.

(f)  CONFERENCE OF THE PARTIES; PLANNING FOR DISCOVERY.

(1)  Conference Timing. Except in a proceeding exempted from

initial  disclosure under Rule 26(a)(1)(B) or when the court or- ders otherwise, the parties must confer as soon as prac- ticable—and in any event at least 21 days before a scheduling conference is to be   held or a scheduling order is due under Rule 16(b).

(2)  Conference Content; Parties’ Responsibilities. In conferring,

the parties must consider the nature and basis of  their claims and defenses and the possibilities for promptly settling  or re- solving the case; make or arrange for the disclosures required by Rule  26(a)(1); discuss any issues about preserving discover-

able information;  and develop a proposed discovery plan. The attorneys of  record and all unrepresented parties that have ap- peared in the case are jointly  responsible for arranging the conference, for attempting  in good faith to agree on the pro- posed discovery plan, and for submitting to the court within

14  days after  the  conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.

(3)  Discovery Plan. A  discovery plan must state  the parties’

views and proposals on:

(A)  what changes should be  made in the timing, form, or

requirement  for disclosures under Rule 26(a), including a

statement of  when initial  disclosures were made or will be made;

(B)  the subjects on which discovery may be  needed, when

discovery  should  be    completed,  and  whether  discovery should be  conducted in phases or be  limited to or focused on particular issues;

(C)  any issues about disclosure or discovery of  electroni-

cally stored information, including the form or forms in which it should be  produced;

(D)  any issues about claims of  privilege or of  protection

as  trial-preparation  materials,  including—if the  parties agree on a procedure to assert these claims after produc- tion—whether to ask the court to include their agreement in an order;

(E)   what changes should be  made in the limitations  on

discovery imposed under these rules or by local rule, and what other limitations should be  imposed; and

(F) any other orders that  the court should issue under

Rule 26(c)  or under Rule 16(b)  and (c).

(4)  Expedited Schedule. If necessary to comply with its expe-

dited schedule for Rule 16(b)  conferences, a court may by local rule:

(A)  require the parties’ conference to occur less than 21

days before the scheduling conference is held or a schedul- ing order is due under Rule 16(b);  and

(B)   require the written  report outlining the discovery

plan to be   filed less than  14  days after the parties’ con- ference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b)  conference.

(g)  SIGNING  DISCLOSURES  AND DISCOVERY REQUESTS,  RESPONSES,

AND OBJECTIONS.

(1)  Signature  Required; Effect  of   Signature. Every disclosure

under  Rule  26(a)(1) or (a)(3) and every discovery request,  re- sponse, or objection must be  signed by at least one attorney of  record in the attorney’s  own name—or by the party person- ally, if unrepresented—and must state  the signer’s address, e- mail address, and telephone number. By  signing, an attorney or party certifies that to the best of  the person’s knowledge, information, and belief formed after a reasonable inquiry:

(A)  with respect to a disclosure, it is complete and cor-

rect as of  the time it is made; and

(B)  with respect to a discovery request, response, or ob-

jection, it is:

(i)  consistent with these rules and warranted by ex-

isting  law or by a nonfrivolous argument  for extend- ing, modifying, or reversing existing law, or for estab- lishing new law;

(ii) not interposed for any improper purpose, such as

to harass, cause unnecessary delay, or needlessly in- crease the cost of  litigation; and

(iii) neither unreasonable nor unduly burdensome or

expensive, considering the needs of  the case, prior dis- covery in the case, the amount in controversy, and the importance of  the issues at stake in the action.

(2)  Failure to  Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the  court must strike  it  unless a signature is promptly supplied after  the omission is called to the attor- ney’s or party’s attention.

(3)  Sanction for   Improper Certification. If a certification vio-

lates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.

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

1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 30, 1970, eff. July 1, 1970; Apr. 29,  1980,  eff. Aug. 1,  1980;  Apr. 28,  1983,  eff. Aug. 1,  1983;  Mar.

2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec.

1, 2007; Apr. 28, 2010, eff. Dec. 1, 2010.)

Rule 27.  Depositions to  Perpetuate Testimony

(a) BEFORE AN  ACTION IS FILED.

(1)  Petition.  A  person who wants to perpetuate testimony

about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named per- sons in order to perpetuate their testimony. The petition must be  titled in the petitioner’s name and must show:

(A)  that the petitioner expects to be  a party to an action

cognizable in a United States court but cannot presently bring it or cause it to be  brought;

(B)  the subject matter of  the expected action and the pe-

titioner’s interest;

(C)  the facts that  the petitioner wants to  establish  by

the proposed testimony and the reasons to perpetuate it; (D)  the names or a description of  the persons whom the petitioner expects to be  adverse parties  and their  address-

es, so  far as known; and

(E)  the name, address, and expected substance of  the tes-

timony of  each deponent.

(2)  Notice and Service. At  least  21  days before the  hearing

date, the petitioner must serve each expected adverse party with a copy of  the petition and a notice stating the time and place of  the hearing. The notice may be  served either inside or outside the district or state in the manner provided in Rule 4. If that service cannot be  made with reasonable diligence on an expected adverse party, the court may order service by publi- cation  or otherwise. The court must appoint an attorney to represent persons not served in the manner provided in Rule

4 and to cross-examine the deponent if an unserved person is not otherwise represented. If any expected adverse party is a minor or is incompetent, Rule 17(c)  applies.

(3)  Order and Examination. If satisfied  that perpetuating the

testimony may prevent a failure or delay of  justice, the court must issue an order that  designates or describes the persons

whose depositions may be  taken, specifies the subject matter of  the examinations, and states  whether the depositions will be  taken orally or by written interrogatories. The depositions may then be  taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35. A reference in these rules to the court where an action is pending means, for purposes of  this rule, the court where the petition for the dep- osition was filed.

(4)  Using the  Deposition. A  deposition to perpetuate testi-

mony may be  used under Rule 32(a)  in any later-filed district- court action involving the same subject matter  if the deposi- tion either  was taken  under these rules or, although not so taken,  would be   admissible in evidence in the courts of  the state where it was taken.

(b)  PENDING APPEAL.

(1) In General. The court where a judgment has been rendered

may, if an appeal has been taken or may still be  taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of  further proceedings in that court.

(2)  Motion. The party who wants to perpetuate testimony

may move for leave to take the depositions, on the same no- tice and service as if the action were pending in the district court. The motion must show:

(A)  the name, address, and expected substance of  the tes-

timony of  each deponent; and

(B)  the reasons for perpetuating the testimony.

(3) Court Order. If the court  finds that perpetuating the testi-

mony may prevent a failure or delay of  justice, the court may permit the depositions to be  taken and may issue orders like those authorized by Rules 34 and 35.  The depositions may be taken and used as any other deposition taken in a pending dis- trict-court action.

(c)   PERPETUATION  BY    AN    ACTION. This  rule  does  not limit  a

court’s power to entertain an action to perpetuate testimony.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.

20, 1949; Mar. 1, 1971, eff. July 1, 1971; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 25,  2005,  eff. Dec. 1,  2005;  Apr. 30,  2007,  eff. Dec. 1,  2007;  Mar.

26, 2009, eff. Dec. 1, 2009.)

Rule 28.  Persons Before Whom Depositions  May  Be  Taken

(a) WITHIN THE UNITED STATES.

(1)  In General. Within the United States or a territory or in-

sular possession subject to United States jurisdiction, a depo- sition must be  taken before:

(A)   an officer authorized to administer oaths either by

federal law or by the law in the place of  examination; or

(B)  a person appointed by the court where the action is

pending to administer oaths and take testimony.

(2)  Definition of  ‘‘Officer.’’ The term  ‘‘officer’’ in Rules 30, 31,

and 32 includes a person appointed by the court under this rule or designated by the parties under Rule 29(a).

(b)  IN A  FOREIGN COUNTRY.

(1)  In General. A  deposition may be  taken in a foreign coun-

try:

(A)  under an applicable treaty or convention;

(B)  under a letter of  request, whether or not captioned a

‘‘letter rogatory’’;

(C)  on notice, before a person authorized to administer

oaths either by federal law or by the law in the place of  ex- amination; or

(D)  before a person commissioned by the court to admin-

ister any necessary oath and take testimony.

(2)  Issuing a  Letter of  Request or  a  Commission. A  letter of  re-

quest, a commission, or both may be  issued:

(A)  on appropriate terms after an application and notice

of  it; and

(B)  without a showing that  taking the deposition in an-

other manner is impracticable or inconvenient.

(3)  Form of  a  Request, Notice, or  Commission. When a letter of

request or any other device is used according to a treaty  or convention, it must be   captioned in the  form prescribed by that  treaty  or convention. A   letter of   request  may be   ad- dressed ‘‘To  the Appropriate Authority in [name of  country].’’ A  deposition notice or a commission must designate by name or descriptive title  the person before whom the deposition is to be  taken.

(4)  Letter of  Request—Admitting  Evidence. Evidence obtained

in response to a letter of  request need not be  excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of  any similar departure from the requirements for depositions taken within the United States.

(c)  DISQUALIFICATION. A  deposition must not be  taken before a

person who is any party’s relative, employee, or attorney; who is related to or employed by any party’s attorney;  or who is finan- cially interested in the action.

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

1, 1963; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 1, 2007, eff. Dec. 1, 2007.)

Rule 29.  Stipulations About Discovery Procedure

Unless the court orders otherwise, the parties may stipulate that:

(a) a deposition may be  taken before any person, at any time or

place, on any notice, and in the manner specified—in which event

it may be  used in the same way as any other deposition; and

(b)   other  procedures governing or limiting  discovery be   modi-

fied—but a stipulation extending the time for any form of  discov- ery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial.

(As  amended Mar. 30,  1970,  eff. July 1,  1970; Apr. 22,  1993,  eff. Dec.

1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 30.  Depositions by  Oral  Examination

(a) WHEN A  DEPOSITION  MAY BE TAKEN.

(1)  Without  Leave. A  party  may, by oral questions, depose

any person, including a party, without leave of  court except as provided  in  Rule  30(a)(2). The deponent’s attendance  may be compelled by subpoena under Rule 45.

(2)  With Leave. A  party must obtain leave of  court, and the court must grant  leave to the  extent  consistent with Rule

26(b)(2):

(A)  if the parties have not stipulated to the deposition

and:

(i)  the deposition would result in more than 10 depo-

sitions being taken under this rule or Rule 31  by the plaintiffs, or by the defendants, or by the third-party defendants;

(ii) the  deponent has  already  been deposed in the

case; or

(iii) the party seeks to take the deposition before the

time  specified in Rule 26(d), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be  unavail- able for examination in this country after that  time; or

(B)  if the deponent is confined in prison.

(b)  NOTICE OF THE DEPOSITION; OTHER FORMAL REQUIREMENTS.

(1)  Notice in General. A  party who wants to depose a person

by oral questions must give reasonable written notice to every other party. The notice must state the time and place of  the deposition and, if known, the deponent’s name and address. If the name is unknown, the notice must provide a general de- scription sufficient to identify the person or the particular class or group to which the person belongs.

(2)  Producing Documents. If a subpoena duces tecum  is to be

served on the deponent, the materials  designated for produc- tion, as set out in the subpoena, must be  listed in the notice or in an attachment.  The notice to a party deponent may be accompanied by a request under Rule 34 to produce documents and tangible things at the deposition.

(3) Method of  Recording.

(A)  Method Stated in the Notice. The party who notices the

deposition must state in the notice the method for record- ing the testimony. Unless the court orders otherwise, tes- timony may be  recorded by audio, audiovisual, or steno- graphic  means.  The  noticing  party  bears  the  recording costs. Any party  may arrange to transcribe  a deposition. (B)  Additional Method. With prior notice to the deponent

and other parties, any party may designate another meth- od  for recording the testimony in addition to that  speci- fied in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise.

(4) By Remote Means. The parties may stipulate—or the court

may on motion order—that a deposition be  taken by telephone or other remote means. For the purpose of  this rule and Rules

28(a), 37(a)(2), and  37(b)(1), the deposition takes  place where the deponent answers the questions.

(5) Officer’s Duties.

(A)   Before the  Deposition. Unless  the parties stipulate

otherwise, a deposition must be  conducted before an offi- cer  appointed  or  designated  under  Rule  28.   The  officer must begin the deposition with an on-the-record statement that includes:

(i)  the officer’s name and business address;

(ii) the date, time, and place of  the deposition;

(iii) the deponent’s name;

(iv) the officer’s administration  of  the oath or affir-

mation to the deponent; and

(v)  the identity of  all persons present.

(B)   Conducting the Deposition; Avoiding Distortion. If the

deposition  is  recorded  nonstenographically,  the  officer

must repeat the items in Rule 30(b)(5)(A)(i)–(iii) at the be- ginning of  each unit of  the recording medium. The depo- nent’s and attorneys’ appearance or demeanor must not be distorted through recording techniques.

(C)  After the Deposition. At the end of  a deposition, the of-

ficer must state on the record that the deposition is com- plete and must set out any stipulations made by the attor- neys about custody of  the transcript  or recording and of the exhibits, or about any other pertinent matters.

(6)  Notice or  Subpoena Directed to  an Organization. In its  no-

tice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a gov- ernmental agency, or other entity and must describe with rea- sonable particularity the matters for examination. The named organization must then designate one or more officers, direc- tors, or managing agents, or designate other persons who con- sent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of  its duty to make this des- ignation. The persons designated must testify about informa- tion known or reasonably available to the organization. This paragraph (6)  does not preclude a deposition by any other pro- cedure allowed by these rules.

(c)  EXAMINATION AND CROSS-EXAMINATION; RECORD OF THE  EXAM-

INATION; OBJECTIONS; WRITTEN QUESTIONS.

(1)  Examination and Cross-Examination. The examination and

cross-examination of  a deponent proceed as they would at trial under the Federal Rules of  Evidence, except Rules 103 and  615. After putting the deponent under oath or affirmation, the offi- cer  must  record the  testimony  by  the  method  designated under Rule 30(b)(3)(A). The testimony must be  recorded by the officer personally or by a person acting in the presence and under the direction of  the officer.

(2) Objections. An  objection at the time of  the examination—

whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of  taking the deposition, or to any other  aspect of   the  deposition—must be   noted on the record, but the examination still  proceeds; the testimony is taken subject to any objection. An   objection must be  stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct  a deponent not to answer only when nec- essary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

(3) Participating Through Written Questions. Instead  of  partici-

pating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing the depo- sition, who must deliver them to the officer. The officer must

ask the deponent those questions and record the answers ver- batim.

(d)  DURATION; SANCTION; MOTION TO  TERMINATE OR  LIMIT.

(1)  Duration. Unless otherwise stipulated  or ordered by the

court, a deposition is limited to 1  day of  7  hours. The court must  allow additional  time  consistent  with Rule 26(b)(2)  if needed to fairly examine the deponent or if the deponent, an- other person, or any other circumstance impedes or delays the examination.

(2)   Sanction. The court  may  impose an  appropriate  sanc-

tion—including the reasonable expenses and attorney’s fees in- curred by any party—on a person who impedes, delays, or frus- trates the fair examination of  the deponent.

(3) Motion to  Terminate or Limit.

(A)  Grounds. At any time during a deposition, the depo-

nent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a man- ner that  unreasonably annoys, embarrasses, or oppresses the  deponent or party.  The motion may be   filed in the court  where the  action  is  pending or the  deposition is being taken.  If the  objecting deponent or party  so   de- mands, the deposition must be  suspended for the time nec- essary to obtain an order.

(B)   Order. The court  may order that  the  deposition be

terminated or may limit its scope and manner as provided in  Rule 26(c). If terminated,  the  deposition may  be   re- sumed only by order of  the court where the action is pend- ing.

(C)  Award of  Expenses. Rule  37(a)(5) applies to the award

of  expenses.

(e)  REVIEW BY  THE WITNESS; CHANGES.

(1)  Review; Statement of  Changes. On  request by the deponent

or a party  before the deposition is completed, the deponent must be  allowed 30 days after being notified by the officer that the transcript or recording is available in which:

(A)  to review the transcript or recording; and

(B)  if there are changes in form or substance, to sign a

statement listing the changes and the reasons for making them.

(2)  Changes Indicated in the Officer’s Certificate. The officer

must note in the certificate prescribed by Rule 30(f)(1)  whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period.

(f)  CERTIFICATION  AND DELIVERY; EXHIBITS; COPIES  OF THE TRAN-

SCRIPT OR  RECORDING; FILING.

(1) Certification and Delivery. The officer must certify in writ-

ing that  the witness was duly sworn and that  the deposition accurately records the  witness’s testimony. The certificate must accompany the record of  the deposition. Unless the court orders otherwise, the officer must seal the deposition in an en- velope or package bearing the title  of  the action and marked

‘‘Deposition of  [witness’s name]’’ and must promptly send it to the attorney who arranged for the transcript or recording. The attorney must store it under conditions that  will protect it against loss, destruction, tampering, or deterioration.

(2) Documents and Tangible Things.

(A)  Originals and Copies. Documents  and tangible things

produced for inspection during a deposition must, on a par- ty’s request, be  marked for identification and attached to the deposition. Any party may inspect and copy them. But if the person who produced them wants to keep the origi- nals, the person may:

(i)  offer copies to be  marked, attached to the deposi-

tion, and then used as originals—after giving all par- ties a fair opportunity to verify the copies by compar- ing them with the originals; or

(ii) give all parties a fair opportunity to inspect and

copy the  originals  after  they  are  marked—in which event the originals may be  used as if attached to the deposition.

(B)   Order Regarding the Originals. Any party  may  move

for an order that  the originals be  attached  to the deposi- tion pending final disposition of  the case.

(3)   Copies  of   the  Transcript or   Recording.  Unless otherwise

stipulated or ordered by the court, the officer must retain the stenographic notes of  a deposition taken stenographically or a copy of  the recording of  a deposition taken by another meth- od. When paid reasonable charges, the officer must furnish a copy of  the transcript or recording to any party or the depo- nent.

(4)  Notice of   Filing. A  party who files the deposition must

promptly notify all other parties of  the filing.

(g)  FAILURE TO   ATTEND A  DEPOSITION OR   SERVE A  SUBPOENA; EX-

PENSES. A  party who, expecting a deposition to be  taken, attends in person or by an attorney  may recover reasonable expenses for attending,  including attorney’s fees, if the noticing party  failed to:

(1) attend and proceed with the deposition; or

(2)   serve  a  subpoena  on  a  nonparty  deponent,  who con-

sequently did not attend.

(As  amended Jan. 21,  1963, eff. July 1,  1963; Mar. 30,  1970, eff. July

1, 1970; Mar. 1, 1971, eff. July 1, 1971; Nov. 20, 1972, eff. July 1, 1975; Apr. 29,  1980,  eff. Aug. 1,  1980;  Mar. 2,  1987,  eff. Aug. 1,  1987;  Apr.

22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 31.  Depositions by  Written Questions

(a) WHEN A  DEPOSITION  MAY BE TAKEN.

(1) Without Leave. A party may, by written questions, depose

any person, including a party, without leave of  court except as provided  in  Rule  31(a)(2). The deponent’s attendance  may be compelled by subpoena under Rule 45.

(2)  With Leave. A  party must obtain leave of  court, and the

court must grant  leave to the  extent  consistent with Rule

26(b)(2):

(A)  if the parties have not stipulated to the deposition

and:

(i)  the deposition would result in more than 10 depo- sitions being taken under this rule or Rule 30  by the

plaintiffs, or by the defendants, or by the third-party defendants;

(ii) the  deponent has  already  been deposed in the case; or

(iii) the party seeks to take a deposition before the time specified in Rule 26(d);  or

(B)  if the deponent is confined in prison.

(3)  Service; Required  Notice. A  party  who wants to depose a person by written questions must serve them on every other party,  with a notice stating,  if known, the  deponent’s name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs. The no- tice must also state the name or descriptive title and the ad- dress of  the officer before whom the deposition will be  taken. (4)  Questions Directed to  an Organization. A  public or private corporation, a partnership, an association, or a governmental agency may be   deposed by written  questions  in  accordance

with Rule 30(b)(6).

(5)  Questions from Other Parties. Any questions  to the  depo- nent from other parties must be  served on all parties as fol- lows: cross-questions,  within  14  days after being served with the notice and direct questions; redirect questions, within 7 days after being served with cross-questions; and recross-ques- tions, within 7 days after being served with redirect questions. The court may, for good cause, extend or shorten these times. (b) DELIVERY  TO   THE OFFICER; OFFICER’S  DUTIES. The party who

noticed the deposition must deliver to the officer a copy of  all the questions served and of  the notice. The officer must promptly pro- ceed in the manner provided in Rule 30(c), (e), and (f)  to:

(1)  take the deponent’s testimony in response to the ques- tions;

(2) prepare and certify the deposition; and

(3)  send it to the party, attaching a copy of  the questions and of  the notice.

(c)  NOTICE OF COMPLETION OR  FILING.

(1)  Completion. The party  who noticed the deposition must notify all other parties when it is completed.

(2)  Filing. A  party who files the deposition must promptly notify all other parties of  the filing.

(As  amended Mar. 30,  1970,  eff. July 1,  1970; Mar. 2,  1987,  eff. Aug.

1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 32.  Using Depositions in Court Proceedings

(a) USING DEPOSITIONS.

(1)  In General. At a hearing or trial, all or part of  a deposi- tion may be  used against a party on these conditions:

(A)  the party was present or represented at the taking of the deposition or had reasonable notice of  it;

(B)  it is used to the extent it would be  admissible under the Federal Rules of  Evidence if the deponent were present and testifying; and

(C)  the use is allowed by Rule 32(a)(2) through (8).

(2) Impeachment and Other Uses. Any party  may use a deposi- tion to contradict or impeach the testimony given by the de- ponent as a witness, or for any other purpose allowed by the Federal Rules of  Evidence.

(3)  Deposition of  Party, Agent, or  Designee. An   adverse party

may use for any purpose the deposition of  a party or anyone who, when deposed, was the party’s officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).

(4)  Unavailable Witness. A  party may use for any purpose the

deposition of  a witness, whether or not a party, if the court finds:

(A)  that the witness is dead;

(B)   that  the witness is more than 100  miles from the

place of  hearing or trial or is outside the United States, unless it appears that  the witness’s absence was procured by the party offering the deposition;

(C)  that  the witness cannot attend or testify because of

age, illness, infirmity, or imprisonment;

(D)  that the party offering the deposition could not pro-

cure the witness’s attendance by subpoena; or

(E)    on  motion  and  notice,  that   exceptional  circum-

stances make it  desirable—in the interest  of  justice and with due regard to the importance of   live testimony in open court—to permit the deposition to be  used.

(5) Limitations on  Use.

(A)  Deposition Taken on  Short Notice. A  deposition must

not be  used against a party who, having received less than

14  days’ notice  of   the deposition, promptly moved for a protective order under Rule 26(c)(1)(B) requesting that it not be  taken or be  taken at a different time or place—and this  motion  was still  pending when the  deposition was taken.

(B)  Unavailable Deponent; Party  Could Not   Obtain an At-

torney. A  deposition taken  without leave of   court under the unavailability provision of   Rule  30(a)(2)(A)(iii) must not be  used against a party who shows that,  when served with the notice, it could not, despite diligent efforts, ob- tain an attorney to represent it at the deposition.

(6)  Using Part of  a  Deposition. If a party  offers in evidence

only part of  a deposition, an adverse party may require the of- feror to introduce other parts that  in fairness should be  con- sidered with the part introduced, and any party may itself in- troduce any other parts.

(7)  Substituting a  Party. Substituting  a party under Rule 25

does not affect the right to use a deposition previously taken. (8)  Deposition Taken  in an Earlier Action. A  deposition  law- fully taken and, if required, filed in any federal- or state-court action may be  used in a later action involving the  same sub- ject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the

later action. A  deposition previously taken may also be  used as allowed by the Federal Rules of  Evidence.

(b)   OBJECTIONS  TO    ADMISSIBILITY. Subject  to  Rules 28(b)   and

32(d)(3), an objection may be  made at a hearing or trial to the ad- mission of  any deposition testimony that would be  inadmissible if the witness were present and testifying.

(c)  FORM OF PRESENTATION. Unless the court orders otherwise, a party must provide a transcript of  any deposition testimony the party offers, but may provide the court with the testimony in non- transcript  form as well. On  any party’s request, deposition testi- mony offered in a jury trial  for any purpose other than impeach- ment must be  presented in nontranscript form, if available, unless the court for good cause orders otherwise.

(d)  WAIVER OF OBJECTIONS.

(1)  To  the Notice. An  objection to an error or irregularity in

a deposition notice is waived unless promptly served in writ- ing on the party giving the notice.

(2)  To  the Officer’s Qualification. An   objection  based on dis-

qualification of  the officer before whom a deposition is to be taken is waived if not made:

(A)  before the deposition begins; or

(B)  promptly after the basis for disqualification becomes

known  or,  with  reasonable  diligence,  could  have  been known.

(3) To  the Taking of  the Deposition.

(A)  Objection to  Competence, Relevance, or  Materiality. An

objection  to  a  deponent’s competence—or to  the  com- petence, relevance, or  materiality  of   testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.

(B)  Objection to  an Error or  Irregularity. An   objection to

an error or irregularity  at an oral examination is waived if:

(i)  it relates to the manner of  taking the deposition,

the form of  a question or answer, the oath or affirma- tion, a party’s conduct, or other matters that  might have been corrected at that time; and

(ii) it is not timely made during the deposition.

(C)  Objection to  a  Written Question. An   objection to the

form of  a written question under Rule 31 is waived if not served in writing on the  party  submitting  the  question within the time for serving responsive questions or, if the question is a recross-question, within 7  days after  being served with it.

(4)  To  Completing and Returning the Deposition. An  objection

to  how the  officer transcribed  the  testimony—or prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition—is waived unless a motion to suppress is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known.

(As  amended Mar. 30, 1970, eff. July 1,  1970; Nov. 20, 1972, eff. July

1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22,  1993,  eff. Dec. 1,  1993;  Apr. 30,  2007,  eff. Dec. 1,  2007;  Mar.

26, 2009, eff. Dec. 1, 2009.)

Rule 33.  Interrogatories to  Parties

(a) IN GENERAL.

(1)  Number. Unless otherwise stipulated  or ordered by the

court, a party may serve on any other party no more than 25

written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be  granted to the ex- tent consistent with Rule 26(b)(2).

(2)  Scope. An   interrogatory may relate to any matter that

may be  inquired into under Rule 26(b). An  interrogatory is not objectionable merely because it asks for an opinion or conten- tion that relates to fact or the application of  law to fact, but the court may order that  the interrogatory need not be   an- swered until designated discovery is complete, or until a pre- trial conference or some other time.

(b)  ANSWERS AND OBJECTIONS.

(1)  Responding Party. The interrogatories must be  answered:

(A)  by the party to whom they are directed; or

(B)   if that  party is a public or private corporation, a

partnership, an association, or a governmental agency, by any officer or agent, who must furnish the  information available to the party.

(2)  Time to  Respond. The responding party  must serve its an-

swers and any  objections  within  30  days after  being served with the interrogatories. A shorter or longer time may be  stip- ulated to under Rule 29 or be  ordered by the court.

(3)  Answering Each Interrogatory. Each interrogatory must,

to the extent it is not objected to, be  answered separately and fully in writing under oath.

(4)  Objections. The grounds for objecting  to an interrogatory

must be   stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, ex- cuses the failure.

(5)  Signature. The person who makes the answers must sign

them, and the attorney who objects must sign any objections. (c)  USE. An  answer to an interrogatory may be  used to the ex-

tent allowed by the Federal Rules of  Evidence.

(d)  OPTION  TO   PRODUCE BUSINESS  RECORDS. If the answer to an

interrogatory may be  determined by examining, auditing, compil- ing, abstracting,  or summarizing a party’s business records (in- cluding electronically stored information), and if the burden of  de- riving or ascertaining the answer will be  substantially the same for either party, the responding party may answer by:

(1)  specifying the records that  must be   reviewed, in  suffi-

cient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and

(2)  giving the interrogating party a reasonable opportunity

to examine and audit the records and to make copies, compila- tions, abstracts, or summaries.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July

1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 34.  Producing Documents, Electronically Stored Information, and  Tangible  Things,  or   Entering  onto  Land, for   Inspection and Other Purposes

(a) IN GENERAL. A party may serve on any other party a request within the scope of  Rule 26(b):

(1)  to  produce and permit  the  requesting  party  or its  rep-

resentative  to  inspect, copy, test,  or  sample  the  following

items  in the  responding party’s possession, custody, or con- trol:

(A)   any designated documents or electronically stored

information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which in- formation can be  obtained either directly or, if necessary, after translation  by the responding party into a reason- ably usable form; or

(B)  any designated tangible things; or

(2)  to permit entry onto designated land or other property

possessed or controlled by the responding party,  so  that the requesting party  may inspect, measure, survey, photograph, test, or sample the property or any designated object or oper- ation on it.

(b)  PROCEDURE.

(1) Contents of  the Request. The request:

(A)   must  describe with  reasonable particularity   each

item or category of  items to be  inspected;

(B)   must specify a reasonable time, place, and manner

for the inspection and for performing the related acts; and

(C)   may specify the form or forms in which electroni-

cally stored information is to be  produced. (2) Responses and Objections.

(A)  Time to  Respond. The party to whom the request is di-

rected must respond in writing within 30 days after being served.  A   shorter  or longer time  may be   stipulated to under Rule 29 or be  ordered by the court.

(B)  Responding to  Each Item. For each item or category,

the response must either state that inspection and related activities will be  permitted as requested or state an objec- tion to the request, including the reasons.

(C)   Objections. An   objection to part of   a request must

specify the part and permit inspection of  the rest.

(D)  Responding to  a Request for  Production of  Electronically

Stored Information. The response may state an objection to a requested form for producing electronically stored infor- mation.  If the  responding party  objects to  a  requested form—or if no form was specified in the request—the party must state the form or forms it intends to use.

(E)  Producing the Documents or  Electronically Stored Infor-

mation. Unless otherwise stipulated or  ordered by the court, these procedures apply to producing documents or electronically stored information:

(i)  A party must produce documents as they are kept

in the usual course of  business or must organize and label them to correspond to the categories in the re- quest;

(ii) If a request does not specify a form for producing

electronically   stored   information,  a   party   must produce it in a form or forms in which it is ordinarily maintained  or in a reasonably usable form or forms; and

(iii) A  party  need not produce the  same electroni-

cally stored information in more than one form.

(c)  NONPARTIES. As  provided in Rule 45, a nonparty may be  com- pelled to produce documents and tangible things or to permit an inspection.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July

1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30,  1991,  eff. Dec. 1,  1991;  Apr. 22,  1993,  eff. Dec. 1,  1993;  Apr.

12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 35.  Physical and Mental Examinations

(a) ORDER FOR AN  EXAMINATION.

(1)  In General. The court  where the action is pending may order a party  whose mental  or physical condition—including blood group—is in controversy to submit to a physical or men- tal examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its  custody or under its legal control.

(2) Motion and Notice; Contents of  the Order. The order:

(A)  may be  made only on motion for good cause and on notice to all parties and the person to be  examined; and

(B)  must specify the time, place, manner, conditions, and scope of  the examination, as well as the person or persons who will perform it.

(b)  EXAMINER’S  REPORT.

(1)  Request by  the Party or  Person Examined. The party  who moved for the examination must, on request, deliver to the re- quester a copy of  the examiner’s report, together with like re- ports of  all earlier examinations of  the same condition. The request may be  made by the party against whom the examina- tion order was issued or by the person examined.

(2)  Contents. The examiner’s report must be  in writing and must set out in detail the examiner’s findings, including diag- noses, conclusions, and the results of  any tests.

(3)  Request by  the Moving Party. After delivering the reports, the party who moved for the examination may request—and is entitled  to receive—from the  party  against  whom the  exam- ination order was issued like reports of  all earlier or later ex- aminations of  the same condition. But those reports need not be  delivered by the party with custody or control of  the person examined if the party shows that it could not obtain them.

(4) Waiver of  Privilege. By  requesting and obtaining the exam- iner’s report, or by deposing the examiner, the party examined waives any privilege it may have—in that action or any other action involving the same controversy—concerning testimony about all examinations of  the same condition.

(5)   Failure  to   Deliver  a   Report. The court  on motion  may order—on just terms—that  a party deliver the report of  an ex- amination. If the report is not provided, the court may ex- clude the examiner’s testimony at trial.

(6) Scope. This subdivision (b)  applies also to an examination made by the parties’ agreement, unless the agreement states otherwise. This subdivision does not preclude obtaining an ex- aminer’s report or deposing an examiner under other rules.

(As  amended Mar. 30,  1970,  eff. July 1,  1970; Mar. 2,  1987,  eff. Aug.

1,  1987;  Pub. L. 100–690,  title  VII, § 7047(b), Nov.  18,  1988,  102 Stat.

4401;  Apr. 30,  1991,  eff. Dec. 1,  1991;  Apr. 30,  2007,  eff. Dec. 1,  2007.)

Rule 36.  Requests for  Admission

(a) SCOPE AND PROCEDURE.

(1) Scope. A party may serve on any other party a written re-

quest to admit, for purposes of  the pending action only, the truth of  any matters within the scope of  Rule  26(b)(1) relating to:

(A)   facts, the  application of   law to  fact,  or  opinions

about either; and

(B)  the genuineness of  any described documents.

(2)  Form; Copy  of   a  Document. Each  matter must be   sepa-

rately stated. A  request to admit the genuineness of  a docu- ment must be  accompanied by a copy of  the document unless it is, or has been, otherwise furnished or made available for in- spection and copying.

(3)  Time to  Respond; Effect of  Not  Responding. A  matter is ad-

mitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written  answer or  objection addressed to  the  matter  and signed by the party or its attorney. A  shorter or longer time for responding may be   stipulated to under Rule 29  or be   or- dered by the court.

(4) Answer. If a matter is not admitted, the answer must spe-

cifically deny it or state  in detail why the answering party cannot truthfully admit or deny it. A  denial must fairly re- spond to the substance of  the matter; and when good faith re- quires that  a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qual- ify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable in- quiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.

(5) Objections. The grounds for objecting to a request must be

stated. A  party must not object solely on the ground that the request presents a genuine issue for trial.

(6) Motion Regarding the Sufficiency of  an Answer or Objection.

The requesting party may move to determine the sufficiency of  an answer or objection. Unless the court finds an objection justified, it must order that an answer be  served. On  finding that an answer does not comply with this rule, the court may order either that  the matter  is admitted or that  an amended answer be  served. The court may defer its final decision until a pretrial  conference or a specified time  before trial.  Rule

37(a)(5) applies to an award of  expenses.

(b)   EFFECT  OF  AN   ADMISSION;  WITHDRAWING  OR   AMENDING   IT.  A

matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be  withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of  the merits of  the action and if the court is not persuaded that it would preju- dice the requesting party in maintaining or defending the action

on the merits. An  admission under this rule is not an admission for any other purpose and cannot be  used against the party in any other proceeding.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July

1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 37.  Failure to  Make Disclosures  or  to  Cooperate in Discovery; Sanctions

(a) MOTION FOR AN  ORDER COMPELLING DISCLOSURE OR  DISCOVERY. (1) In General. On  notice to other parties and all affected per- sons, a party may move for an order compelling disclosure or discovery. The motion must include a certification  that  the movant has in good faith  conferred or attempted  to  confer with the person or party failing to make disclosure  or discov-

ery in an effort to obtain it without court action.

(2)  Appropriate Court. A  motion for an order to a party must

be  made in the court where the action is pending. A motion for an order to a nonparty must be  made in the court where the discovery is or will be  taken.

(3) Specific Motions.

(A)  To  Compel Disclosure. If a party fails to make a disclo-

sure required by Rule 26(a), any other party  may move to compel disclosure and for appropriate sanctions.

(B)  To  Compel a  Discovery Response. A  party  seeking dis-

covery may move for an order compelling an answer, des- ignation, production, or inspection. This motion may be made if:

(i)  a deponent fails to answer a question asked under

Rule 30 or 31;

(ii) a corporation or other entity fails to make a des-

ignation under Rule 30(b)(6) or 31(a)(4);

(iii) a party fails to answer an interrogatory submit-

ted under Rule 33; or

(iv) a party fails to respond that  inspection will be

permitted—or fails to permit inspection—as requested under Rule 34.

(C)  Related to  a  Deposition. When taking an oral deposi-

tion, the party asking a question may complete or adjourn the examination before moving for an order.

(4)  Evasive or  Incomplete Disclosure, Answer, or  Response. For

purposes of  this subdivision (a), an evasive or incomplete dis- closure, answer, or response must be   treated as a failure to disclose, answer, or respond.

(5) Payment of  Expenses; Protective Orders.

(A)  If the Motion Is  Granted (or  Disclosure or  Discovery Is

Provided After Filing). If the  motion  is granted—or if the disclosure or requested discovery is provided after the mo- tion was filed—the court must, after giving an opportunity to be  heard, require the party or deponent whose conduct necessitated the motion, the party or attorney  advising that  conduct, or both to pay the movant’s reasonable ex- penses incurred in making the  motion, including attor- ney’s fees. But the court must not order this payment if:

(i)  the movant filed the motion before attempting in good faith to obtain the disclosure or discovery with- out court action;

(ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or

(iii) other circumstances make an award of  expenses unjust.

(B)  If the Motion Is  Denied. If the motion is denied, the court  may  issue any  protective  order authorized  under Rule 26(c)   and must,  after  giving an opportunity  to  be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the mo- tion its reasonable expenses incurred in opposing the mo- tion, including attorney’s fees. But the court must not order this payment if the motion was substantially justi- fied or other circumstances make an award of  expenses un- just.

(C)  If the Motion Is  Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be  heard, appor- tion the reasonable expenses for the motion.

(b)  FAILURE TO  COMPLY WITH A  COURT ORDER.

(1)  Sanctions in the District Where the Deposition Is  Taken. If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be  treated as contempt of  court.

(2) Sanctions in the District Where the Action Is  Pending.

(A)  For  Not  Obeying a Discovery Order. If a party or a par- ty’s officer, director, or managing agent—or a witness des- ignated   under  Rule  30(b)(6) or  31(a)(4)—fails to  obey an order to provide or permit discovery, including an order under Rule 26(f),  35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:

(i)  directing that the matters embraced in the order or other designated facts be   taken  as established for purposes of  the action, as the prevailing party claims;

(ii) prohibiting the disobedient party  from support- ing or opposing designated claims or defenses, or from introducing designated matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying  further  proceedings until  the  order is obeyed;

(v)  dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobe- dient party; or

(vii) treating  as contempt  of   court the failure to obey any order except an order to submit to a physical or mental examination.

(B)  For  Not  Producing a Person for  Examination. If a party fails to comply with an order under Rule 35(a)  requiring it to produce another person for examination, the court may

issue any of  the orders listed in Rule 37(b)(2)(A)(i)–(vi), un- less the disobedient party  shows that  it  cannot produce the other person.

(C)  Payment of  Expenses. Instead  of  or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the rea- sonable expenses, including attorney’s  fees, caused by the failure, unless the  failure was substantially  justified or other circumstances make an award of  expenses unjust.

(c)  FAILURE TO   DISCLOSE, TO   SUPPLEMENT AN   EARLIER RESPONSE,

OR  TO  ADMIT.

(1) Failure to  Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a)  or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, un- less the failure was substantially  justified or is harmless. In addition to or instead of  this sanction, the court, on motion and after giving an opportunity to be  heard:

(A)   may order payment of  the reasonable expenses, in- cluding attorney’s fees, caused by the failure;

(B)  may inform the jury of  the party’s failure; and

(C)   may impose other  appropriate  sanctions, including any of  the orders listed in Rule 37(b)(2)(A)(i)–(vi).

(2)  Failure  to   Admit. If a party  fails to  admit  what is re- quested under Rule 36 and if the requesting party later proves a document to be  genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney’s  fees, incurred in making that proof. The court must so  order unless:

(A)  the request was held objectionable under Rule 36(a); (B)   the  admission sought was of  no substantial  impor-

tance;

(C)  the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or

(D)  there was other good reason for the failure to admit.

(d)  PARTY’S  FAILURE TO   ATTEND ITS OWN   DEPOSITION, SERVE AN- SWERS TO  INTERROGATORIES, OR  RESPOND TO  A  REQUEST FOR INSPEC- TION.

(1) In General.

(A)   Motion; Grounds for   Sanctions. The court  where the action is pending may, on motion, order sanctions if:

(i)  a party or a party’s officer, director, or managing agent—or a person designated under Rule 30(b)(6)  or

31(a)(4)—fails, after being served with proper notice, to appear for that person’s deposition; or

(ii) a party, after being properly served with inter- rogatories  under Rule 33  or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.

(B)  Certification. A motion for sanctions for failing to an- swer or respond must include a certification that the mov- ant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.

(2)  Unacceptable Excuse for  Failing to  Act. A  failure described in  Rule  37(d)(1)(A) is not excused on the ground that  the dis- covery sought was objectionable, unless the party  failing to act  has a pending motion for a protective order under Rule

26(c).

(3)  Types of  Sanctions. Sanctions may include any of  the or-

ders listed in Rule 37(b)(2)(A)(i)–(vi). Instead of  or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the rea- sonable expenses, including attorney’s fees, caused by the fail- ure, unless the failure was substantially justified or other cir- cumstances make an award of  expenses unjust.

(e)   FAILURE  TO   PROVIDE  ELECTRONICALLY  STORED  INFORMATION.

Absent exceptional circumstances, a court may not impose sanc- tions under these rules on a party for failing to provide electroni- cally stored information lost as a result of  the routine, good-faith operation of  an electronic information system.

(f)  FAILURE TO   PARTICIPATE IN   FRAMING  A  DISCOVERY PLAN. If a

party or its attorney fails to participate in good faith in develop- ing and submitting  a proposed discovery plan as required by Rule

26(f),  the court may, after giving an opportunity to be  heard, re- quire that party or attorney to pay to any other party the reason-

able expenses, including attorney’s fees, caused by the failure.

(As  amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July

1,  1970;  Apr. 29,  1980,  eff. Aug. 1,  1980;  Pub. L. 96–481,  § 205(a), Oct.

21, 1980, 94 Stat. 2330, eff. Oct. 1, 1981; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22,  1993,  eff. Dec. 1,  1993;  Apr. 17,  2000,  eff. Dec. 1,  2000;  Apr.

12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.)

TITLE VI. TRIALS

Rule 38.  Right to  a Jury Trial; Demand

(a) RIGHT PRESERVED. The right  of  trial  by jury as declared by the Seventh Amendment to the Constitution—or as provided by a federal statute—is preserved to the parties inviolate.

(b)  DEMAND. On  any issue triable of  right by a jury, a party may

demand a jury trial by:

(1)  serving the other parties with a written demand—which

may be  included in a pleading—no later  than 14 days after the last pleading directed to the issue is served; and

(2) filing the demand in accordance with Rule 5(d).

(c)  SPECIFYING ISSUES. In its demand, a party may specify the is-

sues that it wishes to have tried by a jury; otherwise, it is consid- ered to have demanded a jury trial  on all the issues so  triable. If the  party  has demanded a jury  trial  on only some issues, any other party may—within 14  days after being served with the de- mand or within a shorter time ordered by the court—serve a de- mand for a jury trial on any other or all factual issues triable by jury.

(d)  WAIVER; WITHDRAWAL. A  party waives a jury trial unless its

demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.

(e)  ADMIRALTY AND MARITIME CLAIMS. These rules  do  not create

a right to a jury trial on issues in a claim that  is an admiralty or maritime claim under Rule 9(h).

(As  amended Feb. 28,  1966,  eff. July 1,  1966;  Mar. 2,  1987,  eff. Aug.

1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 39.  Trial by  Jury or  by  the Court

(a)  WHEN A   DEMAND IS  MADE. When a jury  trial  has been de- manded under Rule 38, the action must be  designated on the dock- et as a jury action. The trial  on all issues so  demanded must be by jury unless:

(1)   the  parties or their  attorneys  file a stipulation to  a

nonjury trial or so  stipulate on the record; or

(2) the court, on motion or on its own, finds that on some or

all of  those issues there is no federal right to a jury trial.

(b)  WHEN NO  DEMAND IS MADE. Issues on which a jury trial is not

properly demanded are to be   tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded.

(c)  ADVISORY JURY; JURY  TRIAL BY  CONSENT. In an action not tri-

able of  right by a jury, the court, on motion or on its own: (1) may try any issue with an advisory jury; or

(2)  may, with the parties’ consent, try any issue by a jury

whose verdict has the same effect as if a jury trial  had been a matter  of   right,  unless the  action  is against  the  United States and a federal statute provides for a nonjury trial.

(As  amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 40.  Scheduling Cases for  Trial

Each court must provide by rule for scheduling trials. The court must give priority to actions entitled to priority by a federal stat- ute.

(As  amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 41.  Dismissal of Actions

(a) VOLUNTARY DISMISSAL. (1) By the Plaintiff.

(A)  Without a  Court Order. Subject  to Rules 23(e), 23.1(c),

23.2,  and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:

(i)   a notice of   dismissal before the  opposing party

serves either an answer or a motion for summary judg- ment; or

(ii) a stipulation  of   dismissal signed by all parties

who have appeared.

(B)  Effect. Unless the notice or stipulation states other-

wise, the dismissal is without prejudice. But if the plain- tiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of  dismissal operates as an adjudication on the merits.

(2) By Court Order; Effect. Except  as provided in Rule 41(a)(1),

an action may be  dismissed at the plaintiff’s request only by court order, on terms that  the court considers proper. If a de- fendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be  dismissed over the defendant’s objection only if the counterclaim can re- main pending for independent adjudication. Unless the order

states otherwise, a dismissal under this paragraph (2)  is with- out prejudice.

(b)  INVOLUNTARY DISMISSAL; EFFECT. If the plaintiff fails to pros-

ecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this sub- division (b)  and any dismissal not under this rule—except one for lack of   jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.

(c)   DISMISSING  A   COUNTERCLAIM,  CROSSCLAIM,  OR    THIRD-PARTY

CLAIM. This  rule  applies  to  a  dismissal  of   any  counterclaim, crossclaim, or third-party claim. A claimant’s voluntary dismissal under  Rule 41(a)(1)(A)(i) must be  made:

(1) before a responsive pleading is served; or

(2)  if there is no responsive pleading, before evidence is in-

troduced at a hearing or trial.

(d)  COSTS OF A  PREVIOUSLY DISMISSED ACTION. If a plaintiff  who

previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court:

(1)  may order the plaintiff to pay all or part of  the costs of

that previous action; and

(2)  may stay  the  proceedings until  the  plaintiff has com-

plied.

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

1,  1963; Feb. 28, 1966, eff. July 1,  1966; Dec. 4,  1967, eff. July 1,  1968; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30,

2007, eff. Dec. 1, 2007.)

Rule 42.  Consolidation; Separate Trials

(a) CONSOLIDATION. If actions before the court involve a common question of  law or fact, the court may:

(1) join for hearing or trial any or all matters at issue in the

actions;

(2) consolidate the actions; or

(3) issue any other orders to avoid unnecessary cost or delay.

(b)  SEPARATE TRIALS. For convenience, to avoid prejudice, or to

expedite and economize, the court may order a separate trial  of one or more separate issues, claims, crossclaims, counterclaims, or third-party  claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.

(As  amended Feb. 28,  1966,  eff. July 1,  1966; Apr. 30,  2007,  eff. Dec.

1, 2007.)

Rule 43.  Taking Testimony

(a) IN  OPEN COURT. At trial,  the witnesses’ testimony must be taken in open court unless a federal statute,  the Federal Rules of Evidence, these  rules,  or  other  rules  adopted by the  Supreme Court provide otherwise. For  good cause in compelling circum- stances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.

(b)  AFFIRMATION INSTEAD OF AN   OATH. When these rules require

an oath, a solemn affirmation suffices.

(c)  EVIDENCE ON  A  MOTION. When a motion relies on facts outside the record, the court may hear the matter  on affidavits or may hear it wholly or partly on oral testimony or on depositions.

(d)   INTERPRETER. The court may appoint an interpreter  of  its

choosing; fix reasonable compensation to be  paid from funds pro- vided by law or by one or more parties; and tax the compensation as costs.

(As  amended Feb. 28,  1966, eff. July 1,  1966; Nov. 20,  1972, and Dec.

18, 1972, eff. July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 44.  Proving an  Official Record

(a) MEANS OF PROVING.

(1)  Domestic Record. Each  of  the following evidences an offi-

cial record—or an entry  in it—that  is otherwise admissible and is kept within the United States, any state,  district,  or commonwealth, or any territory subject to the administrative or judicial jurisdiction of  the United States:

(A)  an official publication of  the record; or

(B)  a copy attested  by the officer with legal custody of

the  record—or by the  officer’s deputy—and accompanied by a certificate that  the officer has custody. The certifi- cate must be  made under seal:

(i)  by a judge of  a court of  record in the district or

political subdivision where the record is kept; or

(ii) by any public officer with a seal of   office and

with official duties in the district or political subdivi- sion where the record is kept.

(2) Foreign Record.

(A)  In General. Each of  the following evidences a foreign

official record—or an entry in it—that is otherwise admis- sible:

(i)  an official publication of  the record; or

(ii) the record—or a copy—that is attested by an au-

thorized person and is accompanied either  by a final certification of  genuineness or by a certification under a treaty or convention to which the United States and the country where the record is located are parties.

(B)  Final Certification of  Genuineness. A final certification

must certify the genuineness of  the signature and official position of  the attester or of  any foreign official whose certificate of  genuineness relates to the attestation  or is in a chain of  certificates of  genuineness relating to the at- testation. A final certification may be  made by a secretary of  a United States  embassy or legation; by a consul gen- eral, vice consul, or consular agent of  the United States; or by a diplomatic or consular official of  the foreign coun- try assigned or accredited to the United States.

(C)  Other Means of  Proof. If all parties have had a reason-

able opportunity to investigate a foreign record’s authen- ticity and accuracy, the court may, for good cause, either: (i)    admit  an  attested  copy without  final  certifi-

cation; or

(ii) permit the record to be  evidenced by an attested

summary with or without a final certification.

(b)   LACK  OF   A   RECORD.  A   written statement that  a diligent search of  designated records revealed no record or entry of  a speci- fied tenor is admissible as evidence that  the records contain no such record or entry. For domestic records, the statement must be authenticated  under Rule 44(a)(1). For  foreign  records,  the state- ment must comply with (a)(2)(C)(ii).

(c)   OTHER PROOF. A  party  may prove an official record—or an

entry or lack of  an entry in it—by any other method authorized by law.

(As  amended Feb. 28,  1966,  eff. July 1,  1966;  Mar. 2,  1987,  eff. Aug.

1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 44.1.  Determining Foreign Law

A  party who intends to raise an issue about a foreign country’s law must give notice by a pleading or other writing. In determin- ing foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of  Evidence. The court’s de- termination must be  treated as a ruling on a question of  law.

(As  added Feb. 28, 1966, eff. July 1, 1966; amended Nov. 20, 1972, eff. July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1,

2007.)

Rule 45.  Subpoena

(a) IN GENERAL.

(1) Form and Contents.

(A)  Requirements—In General. Every subpoena must:

(i)  state the court from which it issued;

(ii) state the title of  the  action,  the  court  in which

it is pending, and its civil-action number;

(iii) command each person to whom it is directed to

do  the following at a specified time and place: attend and testify; produce designated documents, electroni- cally stored information, or tangible things in that person’s possession, custody, or control; or permit the inspection of  premises; and

(iv) set out the text of  Rule 45(c)  and (d).

(B)  Command to  Attend a  Deposition—Notice of  the Record-

ing  Method. A subpoena commanding attendance at a depo- sition must state the method for recording the testimony. (C)  Combining or  Separating a  Command to  Produce or  to Permit  Inspection;  Specifying   the   Form  for    Electronically Stored  Information.  A   command  to  produce  documents, electronically stored information, or tangible things or to

permit the inspection of   premises may be   included in a subpoena commanding attendance  at  a deposition, hear- ing, or trial, or may be  set out in a separate subpoena. A subpoena may specify the form or forms in which elec- tronically stored information is to be  produced.

(D)   Command  to   Produce; Included  Obligations.  A   com-

mand in a subpoena to produce documents, electronically stored information, or tangible things requires the re- sponding party to permit inspection, copying, testing, or sampling of  the materials.

(2)  Issued from Which  Court. A  subpoena must  issue as fol- lows:

(A)  for attendance at a hearing or trial, from the court

for the district where the hearing or trial is to be  held;

(B)  for attendance at a deposition, from the court for the

district where the deposition is to be  taken; and

(C)  for production or inspection, if separate from a sub-

poena commanding a person’s attendance,  from the court for the district where the production or inspection is to be made.

(3)  Issued by  Whom. The clerk must issue a subpoena, signed

but otherwise in blank, to a party who requests it. That party must complete it before service. An   attorney  also may issue and sign a subpoena as an officer of:

(A)  a court in which the attorney is authorized to prac-

tice; or

(B)   a court  for a district  where a deposition is to  be

taken or production is to be  made, if the attorney  is au- thorized to practice in the court where the action is pend- ing.

(b)  SERVICE.

(1) By Whom; Tendering Fees;  Serving a Copy of  Certain Subpoe-

nas. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that

person’s attendance, tendering the fees for 1 day’s attendance and the mileage allowed by law. Fees and mileage need not be tendered  when the  subpoena issues on behalf of   the United States or any of  its officers or agencies. If the subpoena com- mands the production of  documents, electronically stored in- formation, or tangible things or the inspection of  premises be- fore trial, then before it is served, a notice must be  served on each party.

(2)  Service in the United States. Subject  to Rule 45(c)(3)(A)(ii),

a subpoena may be  served at any place:

(A)  within the district of  the issuing court;

(B)  outside that district but within 100 miles of  the place

specified for the deposition, hearing, trial,  production, or inspection;

(C)  within the state of  the issuing court if a state statute

or court rule allows service at that place of  a subpoena is- sued by a state court of  general jurisdiction sitting in the place specified for the deposition, hearing, trial,  produc- tion, or inspection; or

(D)   that  the  court  authorizes on motion and for good

cause, if a federal statute so  provides.

(3)  Service in a  Foreign Country. 28 U.S.C. § 1783 governs issu-

ing and serving a subpoena directed to a United States  na- tional or resident who is in a foreign country.

(4) Proof of  Service. Proving service, when necessary, requires

filing with the issuing court a statement showing the date and manner of  service and the names of  the persons served. The statement must be  certified by the server.

(c)  PROTECTING A  PERSON SUBJECT TO  A  SUBPOENA.

(1)  Avoiding Undue Burden or  Expense; Sanctions.  A  party or

attorney  responsible for issuing and serving a subpoena must

take  reasonable steps to avoid imposing undue burden or ex- pense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction— which may include lost  earnings and reasonable attorney’s fees—on a party or attorney who fails to comply.

(2) Command to  Produce Materials or Permit Inspection.

(A)   Appearance  Not   Required.  A   person  commanded  to

produce documents, electronically stored information, or tangible things, or to permit the inspection of  premises, need not appear in person at the place of  production or in- spection unless also commanded to appear for a deposition, hearing, or trial.

(B)   Objections.  A   person  commanded  to  produce  docu-

ments  or  tangible  things  or  to  permit  inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sam- pling any or all of  the materials or to inspecting the prem- ises—or to producing electronically stored information in the form or forms requested. The objection must be  served before the earlier of  the time specified for compliance or

14  days after  the  subpoena is served. If an objection is made, the following rules apply:

(i)  At any time, on notice to the commanded person,

the serving party may move the issuing court for an order compelling production or inspection.

(ii) These acts may be   required only as directed in

the order, and the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.

(3) Quashing or Modifying a Subpoena.

(A)  When Required. On  timely motion, the issuing court

must quash or modify a subpoena that:

(i)  fails to allow a reasonable time to comply;

(ii) requires a person who is neither a party nor a

party’s officer to  travel  more than  100  miles  from where that  person resides, is employed, or regularly transacts  business in person—except that, subject to Rule 45(c)(3)(B)(iii), the  person  may  be  commanded to attend a trial by traveling from any such place within the state where the trial is held;

(iii) requires  disclosure of   privileged or other  pro-

tected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

(B)  When Permitted. To  protect a person subject to or af-

fected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires:

(i)  disclosing a trade secret or other confidential re-

search, development, or commercial information;

(ii) disclosing an unretained  expert’s opinion or in-

formation that  does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party; or

(iii) a person who is neither a party nor a party’s of-

ficer to incur substantial expense to travel more than

100 miles to attend trial.

(C)  Specifying Conditions as  an Alternative. In the circum- stances  described in Rule 45(c)(3)(B),  the court may, in- stead of  quashing or modifying a subpoena, order appear- ance or production under specified conditions if the serv- ing party:

(i)  shows a substantial  need for the testimony or ma-

terial that  cannot be   otherwise met  without  undue hardship; and

(ii) ensures that  the subpoenaed person will be  rea-

sonably compensated.

(d)  DUTIES IN  RESPONDING TO  A  SUBPOENA.

(1)  Producing Documents or  Electronically Stored Information.

These procedures apply to producing documents or electroni- cally stored information:

(A)   Documents.  A   person responding to  a  subpoena to

produce documents must produce them as they are kept in the ordinary course of  business or must organize and label them to correspond to the categories in the demand.

(B)   Form  for   Producing Electronically Stored Information

Not  Specified. If a subpoena does not specify a form for pro- ducing electronically stored information, the person re- sponding must produce it in a form or forms in which it is ordinarily  maintained  or in a reasonably usable form or forms.

(C)  Electronically Stored Information Produced in Only One

Form. The person responding need not  produce the  same electronically  stored information  in more than  one form. (D)  Inaccessible Electronically Stored Information.  The per- son responding need not  provide discovery of   electroni- cally  stored  information  from sources that  the  person identifies  as not  reasonably accessible because of   undue burden or cost. On   motion to compel discovery or for a protective  order, the  person responding must  show that the  information  is not  reasonably accessible because of undue burden or cost. If that  showing is made, the court may nonetheless order discovery from such sources if the

requesting party shows good cause, considering the limita- tions of  Rule  26(b)(2)(C). The court may specify conditions for the discovery.

(2) Claiming Privilege or Protection.

(A)   Information Withheld. A  person withholding  subpoe-

naed information under a claim that  it  is privileged or subject to protection as trial-preparation material must:

(i)  expressly make the claim; and

(ii) describe the nature  of  the  withheld documents,

communications, or tangible things in a manner that, without revealing information itself privileged or pro- tected, will enable the parties to assess the claim.

(B)  Information Produced. If information produced in re-

sponse to a subpoena is subject to a claim of  privilege or of  protection as trial-preparation material, the person making the claim may notify any party that received the information of  the claim and the basis for it. After being notified, a party must promptly return,  sequester, or de- stroy the specified information and any copies it has; must

not use or disclose the information until the claim is re- solved; must take reasonable steps to retrieve the informa- tion if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of  the claim. The person who produced the information must preserve the information until the claim is resolved.

(e)  CONTEMPT. The issuing court may hold in contempt  a person

who, having been served, fails without  adequate  excuse to  obey the subpoena. A  nonparty’s failure to obey must be  excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of  Rule 45(c)(3)(A)(ii).

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.

20, 1949; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 29,  1985,  eff. Aug. 1,  1985;  Mar. 2,  1987,  eff. Aug. 1,  1987;  Apr.

30, 1991, eff. Dec. 1, 1991; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 46.  Objecting to  a Ruling or  Order

A formal exception to a ruling or order is unnecessary. When the ruling or order is requested or made, a party need only state the action that  it wants the court to take or objects to, along with the grounds for the request or objection. Failing to object does not prejudice a party who had no opportunity to do  so  when the ruling or order was made.

(As  amended Mar. 2,  1987,  eff. Aug. 1,  1987;  Apr. 30,  2007,  eff. Dec.

1, 2007.)

Rule 47.  Selecting Jurors

(a)  EXAMINING  JURORS.   The court  may permit  the  parties  or their attorneys to examine prospective jurors or may itself do  so. If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of  their additional questions it considers proper.

(b)  PEREMPTORY CHALLENGES. The court must allow the number

of  peremptory challenges provided by 28 U.S.C. § 1870.

(c)   EXCUSING  A   JUROR.  During trial  or deliberation, the court

may excuse a juror for good cause.

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

1, 1991; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 48.  Number of Jurors; Verdict; Polling

(a) NUMBER OF JURORS.  A jury must begin with at least 6 and no more than 12 members, and each juror must participate in the ver- dict unless excused under Rule 47(c).

(b)  VERDICT. Unless the parties stipulate otherwise, the verdict must be  unanimous and must be  returned by a jury of  at least 6 members.

(c)   POLLING. After a verdict is returned but before the jury is discharged, the court must on a party’s request, or may on its own, poll the jurors individually. If the poll reveals a lack of  una- nimity or lack of  assent by the number of  jurors that the parties

stipulated to, the court may direct the jury to deliberate further or may order a new trial.

(As  amended Apr. 30,  1991,  eff. Dec. 1,  1991;  Apr. 30,  2007,  eff. Dec.

1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 49.  Special Verdict; General Verdict and Questions

(a) SPECIAL VERDICT.

(1)  In General. The court may require a jury to return  only

a special verdict in the form of  a special written  finding on each issue of  fact. The court may do  so  by:

(A)   submitting  written  questions susceptible of   a cat-

egorical or other brief answer;

(B)  submitting written forms of  the special findings that

might properly be  made under the pleadings and evidence;

or

(C)  using any other method that  the court considers ap-

propriate.

(2) Instructions. The court must give the instructions and ex-

planations necessary to enable the jury to make its findings on each submitted issue.

(3)  Issues Not   Submitted. A  party waives the right to a jury

trial  on any issue of  fact raised by the pleadings or evidence but not submitted to the jury unless, before the jury retires, the party demands its submission to the jury. If the party does not demand submission, the court may make a finding on the issue. If the court makes no finding, it is considered to have made a finding consistent with its  judgment on the special verdict.

(b)  GENERAL VERDICT WITH ANSWERS TO  WRITTEN QUESTIONS.

(1)  In General. The court  may submit  to the jury forms for

a general verdict, together  with written  questions on one or more issues of  fact that the jury must decide. The court must give the instructions and explanations necessary to enable the jury to render a general verdict and answer the questions in writing, and must direct the jury to do  both.

(2)  Verdict and Answers Consistent. When the general verdict

and the answers are consistent, the court must approve, for entry under Rule 58,  an appropriate judgment on the verdict and answers.

(3)  Answers Inconsistent with the Verdict. When the  answers

are consistent with each other but one or more is inconsistent with the general verdict, the court may:

(A)   approve, for  entry  under  Rule  58,   an  appropriate

judgment according to the answers, notwithstanding the general verdict;

(B)   direct the jury to further consider its answers and

verdict; or

(C)  order a new trial.

(4) Answers Inconsistent with Each Other and the Verdict. When

the answers are inconsistent with each other and one or more is also inconsistent with the general verdict, judgment must not be  entered; instead, the court must direct the jury to fur- ther  consider its  answers and verdict, or must order a new trial.

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

1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 50.  Judgment as  a Matter of  Law in a Jury Trial; Related Mo- tion for  a New Trial; Conditional Ruling

(a) JUDGMENT  AS A  MATTER OF LAW.

(1) In General. If a party has been fully heard on an issue dur-

ing a jury trial  and the court finds that  a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A)  resolve the issue against the party; and

(B)   grant  a motion for judgment as a matter  of   law

against the party  on a claim or defense that, under the controlling  law, can be  maintained or defeated only with a favorable finding on that issue.

(2) Motion. A motion for judgment as a matter of  law may be

made at any time before the case is submitted to the jury. The motion must  specify the  judgment sought and the  law and facts that entitle the movant to the judgment.

(b)   RENEWING  THE  MOTION AFTER   TRIAL;  ALTERNATIVE   MOTION

FOR A  NEW TRIAL. If the court does not grant a motion for judg- ment as a matter of  law made under Rule 50(a), the court is con- sidered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. No later than 28 days after the entry of  judgment—or if the motion addresses a jury issue not decided by a verdict, no later  than 28 days after  the  jury  was discharged—the movant may file a re- newed motion for judgment as a matter of  law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:

(1) allow judgment on the verdict, if the jury returned a ver-

dict;

(2) order a new trial; or

(3) direct the entry of  judgment as a matter of  law.

(c)   GRANTING  THE  RENEWED  MOTION; CONDITIONAL  RULING  ON   A

MOTION FOR A  NEW TRIAL.

(1) In General. If the court grants a renewed motion for judg-

ment as a matter of  law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be  granted if the judgment is later vacated or reversed. The court must state the grounds for conditionally granting or denying the motion for a new trial.

(2)  Effect of  a  Conditional Ruling. Conditionally  granting the

motion for a new trial does not affect the judgment’s finality; if the judgment is reversed, the new trial must proceed unless the appellate court orders otherwise. If the motion for a new trial is conditionally denied, the appellee may assert error in that denial; if the judgment is reversed, the case must proceed as the appellate court orders.

(d)  TIME FOR A  LOSING PARTY’S  NEW-TRIAL  MOTION. Any motion

for a new trial  under Rule 59 by a party against whom judgment as a matter of  law is rendered must be  filed no later than 28 days after the entry of  the judgment.

(e)   DENYING  THE  MOTION FOR  JUDGMENT   AS  A   MATTER  OF  LAW;

REVERSAL ON  APPEAL. If the court denies the motion for judgment

as a matter of  law, the prevailing party may, as appellee, assert grounds entitling it to a new trial should the appellate court con- clude that the trial court erred in denying the motion. If the ap- pellate court reverses the judgment, it may order a new trial, di- rect the trial  court to determine whether a new trial  should be granted, or direct the entry of  judgment.

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

1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27,  1995,  eff. Dec. 1,  1995;  Apr. 12,  2006,  eff. Dec. 1,  2006;  Apr.

30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 51.  Instructions to  the Jury; Objections; Preserving  a  Claim of Error

(a) REQUESTS.

(1)  Before or  at the Close  of  the Evidence. At the close of  the

evidence or at any earlier reasonable time that  the court  or- ders, a party may file and furnish to every other party written requests for the jury instructions it wants the  court  to give. (2)  After the Close  of  the Evidence. After the close of  the evi-

dence, a party may:

(A)  file requests for instructions on issues that could not

reasonably have been anticipated by an earlier time that the court set for requests; and

(B)   with the court’s permission, file untimely requests

for instructions on any issue. (b)  INSTRUCTIONS. The court:

(1)  must inform the parties of  its proposed instructions and

proposed action on the requests before instructing the jury and before final jury arguments;

(2)  must give the parties an opportunity to object on the

record and out of  the jury’s hearing before the instructions and arguments are delivered; and

(3)  may instruct the jury at any time before the jury is dis-

charged.

(c)  OBJECTIONS.

(1) How to  Make. A party who objects to an instruction or the

failure to give an instruction must do  so  on the record, stating distinctly the matter  objected to and the grounds for the ob- jection.

(2) When to  Make. An  objection is timely if:

(A)   a party objects at  the opportunity provided under

Rule  51(b)(2); or

(B)  a party was not informed of  an instruction or action

on a request before that  opportunity to object, and the party objects promptly after learning that the instruction or request will be, or has been, given or refused.

(d)  ASSIGNING ERROR; PLAIN ERROR.

(1) Assigning Error. A party may assign as error:

(A)   an error  in an instruction  actually  given, if that

party properly objected; or

(B)  a failure to give an instruction, if that party properly

requested it and—unless the court rejected the request in a definitive ruling on the record—also properly objected.

(2)  Plain Error. A  court may consider a plain error in the in-

structions  that  has not been preserved as required by Rule

51(d)(1) if the error affects substantial rights.

(As  amended Mar. 2,  1987,  eff. Aug. 1,  1987;  Mar. 27,  2003,  eff. Dec.

1, 2003; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 52.  Findings and Conclusions by  the Court; Judgment on  Par- tial Findings

(a) FINDINGS AND CONCLUSIONS.

(1)  In General. In an action tried on the facts without a jury

or with an advisory jury, the court must find the facts spe- cially and state its conclusions of  law separately. The findings and conclusions may be  stated on the record after the close of the evidence or may appear in an opinion or a memorandum of  decision filed by the court. Judgment must be  entered under Rule 58.

(2)  For  an Interlocutory Injunction. In granting or refusing an

interlocutory injunction, the court must similarly state the findings and conclusions that support its action.

(3)  For  a  Motion. The court is not required to state  findings

or conclusions when ruling on a motion under Rule 12 or 56 or, unless these rules provide otherwise, on any other motion.

(4)  Effect of  a  Master’s Findings.  A  master’s findings, to the

extent adopted by the court, must be   considered the court’s findings.

(5)  Questioning the  Evidentiary Support. A  party may later

question the sufficiency of  the evidence supporting the find- ings, whether or not the party requested findings, objected to them, moved to amend them, or moved for partial findings.

(6) Setting Aside the Findings. Findings of  fact, whether based

on oral or other evidence, must not be  set aside unless clearly

erroneous, and the  reviewing court  must give due regard to the trial  court’s opportunity to judge the witnesses’ credibil- ity.

(b)  AMENDED OR   ADDITIONAL FINDINGS. On  a party’s motion filed

no later than 28 days after the entry of  judgment, the court may amend its findings—or make additional  findings—and may amend the judgment accordingly. The motion may accompany a motion for a new trial under Rule 59.

(c)   JUDGMENT   ON   PARTIAL FINDINGS. If a party  has been fully

heard on an  issue during a  nonjury  trial  and the  court  finds against the party on that  issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be  maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judg- ment until the close of  the evidence. A  judgment on partial  find- ings must be  supported by findings of  fact and conclusions of  law as required by Rule 52(a).

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

1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985; Apr. 30,  1991,  eff. Dec. 1,  1991;  Apr. 22,  1993,  eff. Dec. 1,  1993;  Apr.

27, 1995, eff. Dec. 1, 1995; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 53.  Masters

(a) APPOINTMENT.

(1)  Scope. Unless  a statute provides otherwise, a court may

appoint a master only to:

(A)  perform duties consented to by the parties;

(B)  hold trial  proceedings and make or recommend find-

ings of  fact on issues to be  decided without a jury if ap- pointment is warranted by:

(i)  some exceptional condition; or

(ii) the need to perform an accounting or resolve a

difficult computation of  damages; or

(C)  address pretrial and posttrial matters that cannot be

effectively and timely  addressed by an available district judge or magistrate judge of  the district.

(2) Disqualification. A master must not have a relationship to

the parties, attorneys, action, or court that would require dis- qualification of  a judge under 28  U.S.C. § 455,  unless the par- ties, with the court’s approval, consent to the appointment after the master discloses any potential grounds for disquali- fication.

(3)  Possible Expense  or  Delay.  In appointing a master, the

court must consider the fairness of   imposing the  likely  ex- penses on the parties and must protect against unreasonable expense or delay.

(b)  ORDER APPOINTING A  MASTER.

(1)  Notice. Before appointing  a master,  the  court  must  give

the parties notice and an opportunity to be  heard. Any party may suggest candidates for appointment.

(2)  Contents. The appointing order must direct the master to

proceed with all reasonable diligence and must state:

(A)   the master’s duties, including any investigation or

enforcement duties, and any limits  on the  master’s au- thority under Rule 53(c);

(B)  the circumstances, if any, in which the master may

communicate ex  parte with the court or a party;

(C)  the nature of  the materials to be  preserved and filed

as the record of  the master’s activities;

(D)   the time limits, method of  filing the record, other

procedures, and standards  for reviewing the  master’s or- ders, findings, and recommendations; and

(E)   the basis, terms, and procedure for fixing the mas-

ter’s compensation under Rule 53(g).

(3) Issuing. The court may issue the order only after:

(A)  the master files an affidavit disclosing whether there

is any ground for disqualification under 28 U.S.C. § 455; and

(B)  if a ground is disclosed, the parties, with the court’s

approval, waive the disqualification.

(4)  Amending. The order may be  amended at any time after

notice to the parties and an opportunity to be  heard. (c)  MASTER’S  AUTHORITY.

(1) In General. Unless the appointing order directs otherwise,

a master may:

(A)  regulate all proceedings;

(B)   take  all  appropriate measures to  perform the  as-

signed duties fairly and efficiently; and

(C)  if conducting an evidentiary hearing, exercise the ap-

pointing  court’s power to  compel, take,  and record evi- dence.

(2)  Sanctions. The master  may by order impose on a party

any noncontempt sanction provided by Rule 37 or 45, and may

recommend a contempt sanction against a party and sanctions against a nonparty.

(d)  MASTER’S  ORDERS. A  master who issues an order must file it and promptly serve a copy on each party. The clerk must enter the order on the docket.

(e)  MASTER’S  REPORTS. A master must report to the court as re- quired by the appointing order. The master must file the report and promptly serve a copy on each party, unless the court orders otherwise.

(f)  ACTION  ON   THE  MASTER’S   ORDER, REPORT,  OR   RECOMMENDA-

TIONS.

(1)  Opportunity for  a  Hearing; Action in General. In acting on a master’s order, report, or recommendations, the court must give the parties notice and an opportunity to be  heard; may receive evidence; and may adopt or affirm, modify, wholly or partly reject or reverse, or resubmit to the master with in- structions.

(2) Time to  Object or Move to  Adopt or Modify. A party may file objections to—or a motion to adopt or modify—the master’s order, report, or recommendations no later than 21 days after a copy is served, unless the court sets a different time.

(3)   Reviewing Factual Findings. The  court  must  decide  de novo all objections to findings of  fact made or recommended by a master, unless the parties, with the court’s approval, stipulate that:

(A)  the findings will be  reviewed for clear error; or

(B)    the  findings of    a  master  appointed  under  Rule

53(a)(1)(A) or (C)  will be  final.

(4)  Reviewing Legal Conclusions. The  court  must  decide de novo  all  objections  to  conclusions  of    law  made  or  rec- ommended by a master.

(5)  Reviewing Procedural Matters. Unless the appointing order establishes a different standard of  review, the court may set aside a master’s ruling on a procedural matter  only for an abuse of  discretion.

(g)  COMPENSATION.

(1)  Fixing Compensation. Before or after judgment, the court must fix the master’s compensation on the basis and terms stated in the appointing order, but the court may set a new basis and terms after giving notice and an opportunity to be heard.

(2) Payment. The compensation must be  paid either: (A)  by a party or parties; or

(B)   from a fund or subject matter  of  the action within the court’s control.

(3)   Allocating Payment. The court  must  allocate  payment among the parties after considering the nature and amount of the controversy, the parties’ means, and the extent to which any party is more responsible than other parties for the ref- erence to a master. An  interim allocation may be  amended to reflect a decision on the merits.

(h)  APPOINTING A  MAGISTRATE JUDGE.  A magistrate  judge is sub- ject to this rule only when the order referring a matter to the magistrate judge states that the reference is made under this rule.

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

1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22,  1993,  eff. Dec. 1,  1993;  Mar. 27,  2003,  eff. Dec. 1,  2003;  Apr.

30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

TITLE VII. JUDGMENT

Rule 54.  Judgment; Costs

(a) DEFINITION; FORM. ‘‘Judgment’’ as used in  these  rules  in- cludes a decree and any order from which an appeal lies. A  judg- ment should not include recitals of  pleadings, a master’s report, or a record of  prior proceedings.

(b)  JUDGMENT  ON  MULTIPLE  CLAIMS OR  INVOLVING MULTIPLE  PAR- TIES. When an action  presents  more than  one claim for relief— whether as  a  claim, counterclaim, crossclaim, or  third-party claim—or when multiple parties are involved, the court may di- rect entry of  a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other de- cision,  however designated,  that  adjudicates fewer than all the claims or the rights and liabilities of  fewer than all the parties does not end the action as to any of  the claims or parties and may be  revised at any time before the entry of  a judgment adjudicating all the claims and all the parties’ rights and liabilities.

(c)  DEMAND FOR JUDGMENT; RELIEF TO  BE GRANTED. A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.

(d)  COSTS; ATTORNEY’S  FEES.

(1) Costs Other Than Attorney’s Fees. Unless a federal statute, these rules, or a court order provides otherwise, costs—other than  attorney’s  fees—should be    allowed to  the  prevailing party. But costs against the United States, its officers, and its agencies may be  imposed only to the extent allowed by law. The clerk may tax costs on 14 days’ notice. On  motion served within the next 7 days, the court may review the clerk’s ac- tion.

(2) Attorney’s Fees.

(A)  Claim to  Be  by  Motion. A claim for attorney’s fees and related nontaxable expenses must be  made by motion un- less the substantive law requires those fees to be  proved at trial as an element of  damages.

(B)  Timing and Contents of  the Motion. Unless a statute or a court order provides otherwise, the motion must:

(i)   be  filed no later  than 14  days after the entry of judgment;

(ii) specify the judgment and the statute,  rule, or other grounds entitling the movant to the award;

(iii) state the amount sought or provide a fair esti- mate of  it; and

(iv) disclose, if the court so  orders, the terms of  any agreement about fees for the services for which the claim is made.

(C)  Proceedings. Subject  to Rule 23(h), the court must, on a party’s request, give an opportunity  for adversary sub- missions on the motion in accordance with Rule 43(c)  or 78. The court may decide issues of  liability  for fees before re- ceiving submissions on the  value of   services. The court must find the facts and state its conclusions of  law as pro- vided in Rule 52(a).

(D)  Special Procedures by  Local Rule; Reference to  a  Master

or  a  Magistrate Judge. By  local rule, the court may estab- lish special procedures to resolve fee-related issues with- out extensive evidentiary hearings. Also, the court may refer issues concerning the value of  services to a special master under Rule 53 without regard to the limitations of Rule 53(a)(1), and may refer a motion for attorney’s fees to a magistrate judge under Rule 72(b)  as if it were a disposi- tive pretrial matter.

(E)   Exceptions. Subparagraphs  (A)–(D) do   not apply to

claims for fees and expenses as sanctions for violating these rules or as sanctions under 28 U.S.C. § 1927.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 17, 1961, eff. July

19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29,  2002,  eff. Dec. 1,  2002;  Mar. 27,  2003,  eff. Dec. 1,  2003;  Apr.

30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 55.  Default; Default Judgment

(a) ENTERING  A   DEFAULT. When a party  against  whom a judg- ment for affirmative relief is sought has failed to plead or other- wise defend, and that  failure is shown by affidavit or otherwise, the clerk must enter the party’s default.

(b)  ENTERING A  DEFAULT JUDGMENT.

(1)  By the Clerk. If the plaintiff’s claim is for a sum certain

or a sum that can be  made certain by computation, the clerk— on the  plaintiff’s request, with  an  affidavit showing the amount due—must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.

(2)  By the Court. In all other cases, the party must apply to

the court for a default judgment. A  default judgment may be entered against a minor or incompetent person only if rep- resented by a general guardian, conservator, or other like fi- duciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a represent- ative, that  party or its representative must be   served with written notice of   the application at least 7  days before the hearing. The court may conduct hearings or make referrals— preserving any federal statutory  right to a jury trial—when, to enter or effectuate judgment, it needs to:

(A)  conduct an accounting;

(B)  determine the amount of  damages;

(C)  establish the truth of  any allegation by evidence; or

(D)  investigate any other matter.

(c)   SETTING  ASIDE  A   DEFAULT  OR    A   DEFAULT  JUDGMENT.   The

court may set aside an entry of  default for good cause, and it may set aside a default judgment under Rule 60(b).

(d)  JUDGMENT  AGAINST THE UNITED STATES. A  default judgment may be  entered against the United States, its officers, or its agen- cies only if the claimant establishes a claim or right to relief by evidence that satisfies the court.

(As  amended Mar. 2,  1987,  eff. Aug. 1,  1987;  Apr. 30,  2007,  eff. Dec.

1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 56.  Summary Judgment

(a) MOTION FOR SUMMARY JUDGMENT  OR  PARTIAL  SUMMARY JUDG- MENT. A party may move for summary judgment, identifying each claim or defense—or the part  of  each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that  there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of  law. The court should state  on the record the reasons for granting or denying the motion.

(b)  TIME TO  FILE A  MOTION. Unless a different time is set by local

rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of  all discovery.

(c)  PROCEDURES.

(1) Supporting Factual Positions. A party asserting that a fact

cannot be  or is genuinely disputed must support the assertion by:

(A)  citing to particular parts of  materials in the record,

including depositions, documents, electronically stored in- formation, affidavits or declarations, stipulations  (includ- ing those made for purposes of  the motion only), admis- sions, interrogatory answers, or other materials; or

(B)  showing that  the materials cited do  not establish the

absence or presence of  a genuine dispute, or that  an ad- verse party cannot produce admissible evidence to support the fact.

(2)  Objection That  a  Fact Is  Not   Supported by  Admissible Evi-

dence. A  party may object that the material cited to support or dispute a fact cannot be  presented in a form that  would be admissible in evidence.

(3) Materials Not  Cited. The court need consider only the cited

materials, but it may consider other materials in the record. (4) Affidavits or Declarations. An  affidavit or declaration used

to  support or oppose a  motion  must  be   made on personal knowledge, set out facts that would be  admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

(d)  WHEN FACTS  ARE UNAVAILABLE TO   THE NONMOVANT. If a non-

movant shows by affidavit or declaration that,  for specified rea- sons, it cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;

(2)  allow time to obtain affidavits or declarations or to take

discovery; or

(3) issue any other appropriate order.

(e)  FAILING TO  PROPERLY SUPPORT OR  ADDRESS A  FACT. If a party

fails to properly support an assertion of  fact or fails to properly

address another party’s assertion of  fact as required by Rule 56(c), the court may:

(1)  give an opportunity to properly support or address the fact;

(2)  consider the fact undisputed for purposes of  the motion; (3)  grant  summary judgment if the motion and supporting materials—including  the  facts   considered  undisputed—show

that the movant is entitled to it; or

(4) issue any other appropriate order.

(f)  JUDGMENT   INDEPENDENT  OF  THE  MOTION. After giving notice and a reasonable time to respond, the court may:

(1) grant summary judgment for a nonmovant;

(2) grant the motion on grounds not raised by a party; or

(3)  consider summary judgment on its own after identifying for the parties material facts that  may not be   genuinely in dispute.

(g)  FAILING  TO   GRANT ALL THE  REQUESTED RELIEF.  If the court does not grant all the relief requested by the motion, it may enter an order stating  any material  fact—including an item of  damages or other relief—that is not genuinely in dispute and treating the fact as established in the case.

(h)  AFFIDAVIT OR   DECLARATION SUBMITTED  IN   BAD FAITH. If sat- isfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court—after notice and a rea- sonable time to respond—may order the submitting  party  to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result. An   offending party or attorney  may also be  held in contempt or subjected to other appropriate sanctions.

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

1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 28, 2010, eff. Dec. 1, 2010.)

Rule 57.  Declaratory Judgment

These rules govern the procedure for obtaining a declaratory judgment under 28 U.S.C. § 2201.  Rules 38 and 39 govern a demand for a jury trial.  The existence of  another  adequate remedy does not  preclude a  declaratory  judgment that  is  otherwise appro- priate.  The court may order a speedy hearing of  a declaratory- judgment action.

(As  amended Dec. 29,  1948, eff. Oct. 20,  1949; Apr. 30,  2007, eff. Dec.

1, 2007.)

Rule 58.  Entering Judgment

(a)  SEPARATE  DOCUMENT. Every  judgment  and  amended  judg- ment must be  set out in a separate document, but a separate docu- ment is not required for an order disposing of  a motion:

(1) for judgment under Rule 50(b);

(2) to amend or make additional findings under Rule 52(b); (3) for attorney’s fees under Rule 54;

(4)  for a new trial, or to alter or amend the judgment, under

Rule 59; or

(5) for relief under Rule 60.

(b)  ENTERING JUDGMENT.

(1) Without the Court’s Direction. Subject to Rule 54(b)  and un-

less the court orders otherwise, the clerk must, without await- ing the court’s direction, promptly prepare, sign, and enter the judgment when:

(A)  the jury returns a general verdict;

(B)  the court awards only costs or a sum certain; or

(C)  the court denies all relief.

(2) Court’s Approval Required. Subject  to Rule 54(b), the court

must promptly approve the form of  the judgment, which the clerk must promptly enter, when:

(A)  the jury returns a special verdict or a general verdict

with answers to written questions; or

(B)   the court grants other relief not described in this

subdivision (b).

(c)  TIME OF ENTRY. For purposes of  these rules, judgment is en-

tered at the following times:

(1)  if a separate  document  is not  required,  when the  judg-

ment is entered in the civil docket under Rule 79(a); or

(2)  if a separate document is required, when the judgment is

entered in the civil docket under Rule 79(a)  and the earlier of these events occurs:

(A)  it is set out in a separate document; or

(B)  150 days have run from the entry in the civil docket.

(d)  REQUEST FOR ENTRY. A  party may request that judgment be

set out in a separate document as required by Rule 58(a).

(e)  COST OR  FEE  AWARDS. Ordinarily, the entry of  judgment may

not be  delayed, nor the time for appeal extended, in order to tax costs or award fees. But if a timely motion for attorney’s fees is made under Rule 54(d)(2), the court may act before a notice of  ap- peal has been filed and become effective to order that  the motion have the same effect under Federal Rule of  Appellate Procedure

4(a)(4) as a timely motion under Rule 59.

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

1, 1963; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 59.  New Trial; Altering or  Amending a Judgment

(a) IN GENERAL.

(1)  Grounds for  New Trial. The court may, on motion, grant

a new trial on all or some of  the issues—and to any party—as follows:

(A)   after  a jury trial,  for any reason for which a new

trial  has heretofore been granted in an action at law in federal court; or

(B)  after a nonjury trial,  for any reason for which a re-

hearing has heretofore been granted in a suit in equity in federal court.

(2) Further Action After a Nonjury Trial. After a nonjury trial,

the court may, on motion for a new trial,  open the judgment if one has been entered, take additional testimony, amend findings of  fact and conclusions of  law or make new ones, and direct the entry of  a new judgment.

(b)  TIME TO  FILE A  MOTION FOR A  NEW TRIAL. A motion for a new

trial must be  filed no later than 28 days after the entry of  judg- ment.

(c)  TIME TO   SERVE AFFIDAVITS. When a motion for a new trial is based on affidavits, they must be  filed with the motion. The op- posing party has 14 days after being served to file opposing affida- vits. The court may permit reply affidavits.

(d)  NEW TRIAL  ON   THE  COURT’S INITIATIVE  OR   FOR  REASONS NOT

IN   THE MOTION. No  later than 28 days after the entry of  judgment, the court, on its own, may order a new trial  for any reason that would justify granting one on a party’s motion. After giving the parties  notice and an opportunity to  be   heard, the  court may grant a timely motion for a new trial  for a reason not stated in the motion. In either event, the court must specify the reasons in its order.

(e)  MOTION TO   ALTER OR   AMEND  A  JUDGMENT.  A  motion to alter

or amend a judgment must be  filed no later than 28 days after the entry of  the judgment.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July

1, 1966; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 60.  Relief from a Judgment or  Order

(a) CORRECTIONS BASED ON   CLERICAL  MISTAKES; OVERSIGHTS  AND OMISSIONS. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of  the record. The court may do  so on motion or on its own, with or without notice. But after an ap- peal has been docketed in the appellate court and while it is pend- ing, such a mistake  may be   corrected only with the  appellate court’s leave.

(b)   GROUNDS FOR  RELIEF   FROM  A   FINAL  JUDGMENT,  ORDER,  OR

PROCEEDING. On  motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2)   newly discovered evidence that,   with  reasonable  dili-

gence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3)  fraud (whether previously called intrinsic  or extrinsic),

misrepresentation, or misconduct by an opposing party; (4) the judgment is void;

(5)  the judgment has been satisfied, released, or discharged;

it is based on an earlier judgment that  has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

(c)  TIMING AND EFFECT  OF THE MOTION.

(1)  Timing. A  motion under Rule 60(b)  must be  made within

a reasonable time—and for reasons (1),   (2),   and (3)  no more than a year after the entry of  the judgment or order or the date of  the proceeding.

(2)  Effect on   Finality. The motion does not affect the judg-

ment’s finality or suspend its operation.

(d)  OTHER POWERS  TO   GRANT RELIEF. This rule does not limit a

court’s power to:

(1)  entertain  an independent action to relieve a party from

a judgment, order, or proceeding;

(2)  grant relief under 28 U.S.C. § 1655 to a defendant who was not personally notified of  the action; or

(3) set aside a judgment for fraud on the court.

(e)   BILLS  AND  WRITS  ABOLISHED. The  following  are  abolished:

bills of  review, bills in the nature of  bills of  review, and writs of coram nobis, coram vobis, and audita querela.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.

20, 1949; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 61.  Harmless Error

Unless justice requires otherwise, no error in admitting  or ex- cluding evidence—or any other  error  by the court  or a party—is ground for granting a new trial,  for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of  the proceeding, the court must disregard all er- rors and defects that do  not affect any party’s substantial rights.

(As  amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 62.  Stay of Proceedings to  Enforce a Judgment

(a)  AUTOMATIC STAY;  EXCEPTIONS  FOR  INJUNCTIONS,  RECEIVER- SHIPS, AND PATENT  ACCOUNTINGS. Except as stated in this rule, no execution may issue on a judgment, nor may proceedings be  taken to enforce it, until 14 days have passed after its entry. But unless the  court  orders otherwise, the  following are not stayed after being entered, even if an appeal is taken:

(1) an interlocutory or final judgment in an action for an in-

junction or a receivership; or

(2)  a judgment or order that directs an accounting in an ac-

tion for patent infringement.

(b)  STAY PENDING THE DISPOSITION  OF A  MOTION. On  appropriate

terms for the opposing party’s security, the court may stay the execution of  a judgment—or any proceedings to enforce it—pend-

ing disposition of  any of  the following motions:

(1) under Rule 50, for judgment as a matter of  law;

(2)  under Rule 52(b), to amend the findings or for additional

findings;

(3) under Rule 59, for a new trial or to alter or amend a judg-

ment; or

(4) under Rule 60, for relief from a judgment or order.

(c)  INJUNCTION  PENDING  AN   APPEAL. While an appeal is pending

from an interlocutory  order or final judgment that  grants, dis- solves, or denies an injunction, the court may suspend, modify, re- store, or grant an injunction on terms for bond or other terms that  secure the opposing party’s rights. If the judgment appealed from is rendered by a statutory  three-judge district court, the order must be  made either:

(1) by that court sitting in open session; or

(2)  by the assent of  all its judges, as evidenced by their sig-

natures.

(d)  STAY  WITH BOND ON  APPEAL. If an appeal is taken, the appel-

lant may obtain a stay by supersedeas bond, except in an action described  in Rule  62(a)(1) or (2).  The bond may be  given upon or after filing the notice of  appeal or after obtaining the order allow- ing the appeal. The stay takes effect when the court approves the bond.

(e)   STAY  WITHOUT  BOND ON   AN   APPEAL  BY   THE  UNITED  STATES, ITS OFFICERS, OR  ITS AGENCIES. The court must not require a bond, obligation, or other security from the appellant when granting a stay on an appeal by the United States, its officers, or its agencies or on an appeal directed by a department  of  the federal govern- ment.

(f)  STAY IN   FAVOR OF A  JUDGMENT  DEBTOR UNDER STATE LAW. If

a judgment is a lien on the judgment debtor’s property under the law of  the state where the court is located, the judgment debtor is entitled to the same stay of  execution the state  court would give.

(g)  APPELLATE COURT’S POWER  NOT LIMITED.  This  rule  does not

limit the power of  the appellate court or one of  its judges or jus- tices:

(1) to stay proceedings—or suspend, modify, restore, or grant

an injunction—while an appeal is pending; or

(2)  to issue an order to preserve the status quo or the effec-

tiveness of  the judgment to be  entered.

(h)   STAY  WITH MULTIPLE  CLAIMS OR   PARTIES. A  court may stay

the enforcement of  a final judgment entered under Rule 54(b)  until it enters a later judgment or judgments, and may prescribe terms necessary to secure the benefit of   the stayed judgment for the party in whose favor it was entered.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.

20, 1949; Apr. 17, 1961, eff. July 19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 62.1.  Indicative Ruling on  a  Motion for  Relief That is Barred by  a Pending Appeal

(a) RELIEF PENDING APPEAL. If a timely motion is made for relief that the court lacks authority to grant because of  an appeal that has been docketed and is pending, the court may:

(1) defer considering the motion;

(2) deny the motion; or

(3)  state either that  it would grant the motion if the court

of  appeals remands for that purpose or that the motion raises a substantial issue.

(b)  NOTICE TO  THE COURT OF APPEALS. The movant must prompt-

ly notify the circuit clerk under Federal Rule of  Appellate Proce- dure 12.1  if the district court states that it would grant the mo- tion or that the motion raises a substantial issue.

(c)   REMAND. The district  court  may decide the motion if the

court of  appeals remands for that purpose.

(As  added Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 63.  Judge’s Inability to  Proceed

If a judge conducting a hearing or trial is unable to proceed, any other judge may proceed upon certifying familiarity with the record and determining that  the case may be  completed without prejudice to the parties. In a hearing or a nonjury trial, the suc- cessor judge must, at a party’s request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.

(As  amended Mar. 2,  1987,  eff. Aug. 1,  1987;  Apr. 30,  1991,  eff. Dec.

1, 1991; Apr. 30, 2007, eff. Dec. 1, 2007.)

TITLE VIII. PROVISIONAL AND FINAL REMEDIES

Rule 64.  Seizing a Person or  Property

(a) REMEDIES UNDER STATE LAW—IN GENERAL. At the  commence- ment of  and throughout an action, every remedy is available that, under the law of  the state where the court is located, provides for seizing a person or property to secure satisfaction of  the potential judgment. But a federal statute  governs to the extent it applies. (b)  SPECIFIC KINDS OF REMEDIES. The remedies available under this rule include the following—however designated and regardless

of  whether state procedure requires an independent action:

• arrest;

• attachment;

• garnishment;

• replevin;

• sequestration; and

• other corresponding or equivalent remedies.

(As  amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 65.  Injunctions and Restraining Orders

(a) PRELIMINARY INJUNCTION.

(1) Notice. The court may issue a preliminary injunction only

on notice to the adverse party.

(2)  Consolidating the Hearing with the Trial on  the Merits. Be-

fore or after beginning the hearing on a motion for a prelimi- nary injunction, the court may advance the trial on the merits and consolidate it with the hearing. Even when consolidation is not ordered, evidence that  is received on the motion and that  would be   admissible at  trial  becomes part of   the trial record and need not be  repeated at trial. But the court must preserve any party’s right to a jury trial.

(b)  TEMPORARY RESTRAINING ORDER.

(1)  Issuing Without Notice. The court may issue a temporary

restraining order without written or oral notice to the adverse party or its attorney only if:

(A)  specific facts in an affidavit or a verified complaint

clearly show that  immediate and irreparable injury, loss, or damage will result  to the movant before the adverse party can be  heard in opposition; and

(B)  the movant’s attorney certifies in writing any efforts

made to give notice and the reasons why it should not be required.

(2)  Contents; Expiration.  Every temporary  restraining  order

issued without notice must state the date and hour it was is- sued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be  promptly filed in the clerk’s office and entered in the record. The order ex- pires at the time after entry—not to exceed 14 days—that the court sets, unless before that  time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must  be   en- tered in the record.

83                              FEDERAL RULES OF  CIVIL PROCEDURE

Rule 65.1

(3)  Expediting the Preliminary-Injunction Hearing. If the order is issued without notice, the motion for a preliminary injunc- tion must be  set for hearing at the earliest possible time, tak- ing precedence over all other matters except hearings on older matters of  the same character. At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order.

(4)  Motion to  Dissolve. On  2 days’ notice to the party who ob-

tained the order without notice—or on shorter notice set by the court—the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.

(c)  SECURITY. The court may issue a preliminary injunction or

a temporary restraining order only if the movant gives security in an amount that  the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully en- joined or restrained. The United States, its officers, and its agen- cies are not required to give security.

(d)  CONTENTS AND SCOPE  OF EVERY  INJUNCTION  AND RESTRAINING

ORDER.

(1)  Contents. Every order granting  an injunction  and every

restraining order must:

(A)  state the reasons why it issued; (B)  state its terms specifically; and

(C)  describe in reasonable detail—and not by referring to

the  complaint  or  other  document—the act  or  acts  re- strained or required.

(2) Persons Bound. The order binds only the following who re-

ceive actual notice of  it by personal service or otherwise: (A)  the parties;

(B)  the parties’ officers, agents, servants, employees, and

attorneys; and

(C)  other persons who are in active concert or participa-

tion with anyone described in Rule 65(d)(2)(A) or (B).

(e)   OTHER LAWS NOT MODIFIED. These  rules  do   not modify the

following:

(1)  any federal statute relating to temporary restraining or-

ders or preliminary injunctions in actions affecting employer and employee;

(2)  28 U.S.C. § 2361,  which relates to preliminary injunctions

in actions of  interpleader or in the nature of  interpleader; or

(3)  28  U.S.C. § 2284,  which relates to actions that  must  be

heard and decided by a three-judge district court.

(f)  COPYRIGHT IMPOUNDMENT. This rule applies to copyright-im-

poundment proceedings.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.

20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 23,  2001,  eff. Dec. 1,  2001;  Apr. 30,  2007,  eff. Dec. 1,  2007;  Mar.

26, 2009, eff. Dec. 1, 2009.)

Rule 65.1.  Proceedings Against a Surety

Whenever these rules (including the Supplemental Rules for Ad- miralty or Maritime Claims and Asset Forfeiture Actions) require or allow a party to give security, and security is given through a

bond or other undertaking with one or more sureties, each surety submits to the court’s jurisdiction and irrevocably appoints the court clerk as its agent for receiving service of  any papers that af- fect its liability on the bond or undertaking. The surety’s liability may be  enforced on motion without an independent action. The motion and any notice that the court orders may be  served on the court clerk, who must promptly mail a copy of  each to every sur- ety whose address is known.

(As  added Feb. 28, 1966, eff. July 1,  1966; amended Mar. 2,  1987, eff. Aug. 1,  1987;  Apr. 12,  2006,  eff. Dec. 1,  2006;  Apr. 30,  2007,  eff. Dec.

1, 2007.)

Rule 66.  Receivers

These rules govern an action in which the appointment of  a re- ceiver is sought or a receiver sues or is sued. But the practice in administering an estate by a receiver or a similar court-appointed officer must accord with the historical practice in federal courts or with a local rule. An   action in which a receiver has been ap- pointed may be  dismissed only by court order.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.

20, 1949; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 67.  Deposit into Court

(a) DEPOSITING PROPERTY. If any part  of  the relief sought is a money judgment or the disposition of  a sum of  money or some other deliverable thing, a party—on notice to every other party and by leave of  court—may deposit with the court all or part of the money or thing, whether or not that  party claims any of  it. The depositing party must deliver to the clerk a copy of  the order permitting deposit.

(b)  INVESTING  AND WITHDRAWING FUNDS. Money paid  into court

under this rule must be   deposited and withdrawn in accordance with 28  U.S.C. §§ 2041  and 2042  and any like statute.  The money must be  deposited in an interest-bearing account or invested in a court-approved, interest-bearing instrument.

(As  amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 28, 1983, eff. Aug.

1, 1983; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 68.  Offer of Judgment

(a)  MAKING  AN    OFFER;  JUDGMENT   ON    AN    ACCEPTED  OFFER.  At least  14  days before the  date  set  for trial,  a  party  defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, with- in 14 days after being served, the opposing party serves written no- tice accepting the offer, either party may then file the offer and notice of  acceptance,  plus proof of  service. The clerk must then enter judgment.

(b)  UNACCEPTED OFFER. An  unaccepted offer is considered with- drawn, but  it  does not  preclude a  later  offer. Evidence of   an unaccepted offer is not admissible except in a proceeding to deter- mine costs.

(c)  OFFER AFTER LIABILITY IS DETERMINED. When one party’s li- ability to another has been determined but the extent of  liability

85                              FEDERAL RULES OF  CIVIL PROCEDURE

Rule 70

remains to be  determined by further proceedings, the party held liable may make an offer of  judgment. It must be  served within a reasonable time—but at least 14 days—before the date set for a hearing to determine the extent of  liability.

(d)  PAYING COSTS AFTER  AN   UNACCEPTED OFFER. If the judgment

that  the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July

1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 69.  Execution

(a) IN GENERAL.

(1)  Money Judgment; Applicable Procedure. A  money judgment

is enforced by a writ  of   execution, unless the court directs otherwise. The procedure on execution—and in proceedings supplementary to and in aid of  judgment or execution—must accord with the procedure of  the state where the court is lo- cated, but a federal statute governs to the extent it applies.

(2)  Obtaining Discovery. In aid of  the judgment or execution,

the judgment creditor or a successor in interest whose interest appears of  record may obtain  discovery from any person—in- cluding the judgment debtor—as provided in these rules or by the procedure of  the state where the court is located.

(b)   AGAINST  CERTAIN  PUBLIC  OFFICERS.  When a judgment has

been entered against a revenue officer in the circumstances stated in 28 U.S.C. § 2006, or against an officer of  Congress in the circum- stances stated in 2 U.S.C. § 118, the judgment must be  satisfied as those statutes provide.

(As  amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July

1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 70.  Enforcing a Judgment for  a Specific Act

(a) PARTY’S   FAILURE  TO    ACT; ORDERING  ANOTHER  TO    ACT. If a judgment requires a party  to convey land, to deliver a deed or other document, or to perform any other specific act and the party fails to comply within the time specified, the court may order the act to be  done—at the  disobedient  party’s  expense—by another person appointed by the court. When done, the act has the same effect as if done by the party.

(b)  VESTING TITLE. If the real or personal property is within the

district,  the court—instead of  ordering a conveyance—may enter a judgment divesting any party’s title  and vesting it in others. That judgment has the effect of  a legally executed conveyance.

(c)  OBTAINING A  WRIT OF ATTACHMENT OR   SEQUESTRATION. On  ap-

plication by a party entitled to performance of  an act, the clerk must issue a writ of  attachment or sequestration against the dis- obedient party’s property to compel obedience.

(d)  OBTAINING A  WRIT OF EXECUTION OR   ASSISTANCE. On  applica-

tion by a party  who obtains a judgment or order for possession, the clerk must issue a writ of  execution or assistance.

(e)  HOLDING  IN   CONTEMPT. The court  may  also hold the  disobe-

dient party in contempt.

(As  amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 71.  Enforcing Relief For  or  Against a Nonparty

When an order grants relief for a nonparty or may be  enforced against a nonparty, the procedure for enforcing the order is the same as for a party.

(As  amended Mar. 2,  1987,  eff. Aug. 1,  1987;  Apr. 30,  2007,  eff. Dec.

1, 2007.)

TITLE IX. SPECIAL PROCEEDINGS

Rule 71.1.  Condemning Real or  Personal Property

(a) APPLICABILITY OF OTHER RULES. These rules govern proceed- ings to condemn real and personal property by eminent domain, except as this rule provides otherwise.

(b)   JOINDER    OF  PROPERTIES. The plaintiff may join separate

pieces of  property in a single action, no matter whether they are owned by the same persons or sought for the same use.

(c)  COMPLAINT.

(1)  Caption. The complaint  must  contain  a caption  as pro-

vided in Rule 10(a). The plaintiff  must, however, name as de- fendants  both  the  property—designated generally by kind, quantity, and location—and at least one owner of  some part of or interest in the property.

(2)  Contents. The complaint must contain a short and plain

statement of  the following:

(A)  the authority for the taking;

(B)  the uses for which the property is to be  taken;

(C)  a description sufficient to identify the property;

(D)  the interests to be  acquired; and

(E)  for each piece of  property, a designation of  each de-

fendant who has been joined as an owner or owner of  an in- terest in it.

(3)  Parties. When the  action  commences, the  plaintiff  need

join as defendants only those persons who have or claim an in- terest  in the property and whose names are then known. But before any hearing on compensation, the plaintiff must add as defendants all those persons who have or claim an interest and whose names have become known or can be  found by a reason- ably diligent search of  the records, considering both the prop- erty’s character and value and the interests to be  acquired. All others may be   made defendants  under  the  designation  ‘‘Un- known Owners.’’

(4) Procedure. Notice must  be  served on all defendants as pro-

vided in Rule  71.1(d), whether they were named as defendants when the action commenced or were added later. A  defendant may  answer  as provided  in Rule 71.1(e). The court, meanwhile, may order any distribution of  a deposit that the facts warrant. (5)  Filing; Additional Copies. In  addition  to  filing  the  com- plaint,  the plaintiff must give the clerk at least  one copy for the defendants’ use and additional copies at the request of  the

clerk or a defendant. (d)  PROCESS.

(1)  Delivering Notice to  the Clerk. On  filing a complaint, the

plaintiff must promptly deliver to the clerk joint or several

notices  directed  to  the  named defendants. When adding de- fendants, the plaintiff must deliver to the clerk additional no- tices directed to the new defendants.

(2) Contents of  the Notice.

(A)  Main Contents. Each notice must name the court, the

title of  the action, and the defendant to whom it  is di- rected. It must describe the property sufficiently to iden- tify it, but need not describe any property other than that to be   taken from the named defendant. The notice must also state:

(i)  that the action is to condemn property;

(ii) the interest to be  taken;

(iii) the authority for the taking;

(iv) the uses for which the property is to be  taken;

(v)   that  the defendant may serve an answer on the

plaintiff’s attorney  within 21  days after  being served with the notice;

(vi) that the failure to so  serve an answer constitutes

consent to the taking and to the court’s authority to proceed with the action and fix the compensation; and (vii) that  a defendant who does not serve an answer

may file a notice of  appearance.

(B)  Conclusion. The notice  must  conclude with the name,

telephone number, and e-mail address of  the plaintiff’s at- torney and an address within the district in which the ac- tion is brought where the attorney may be  served.

(3) Serving the Notice.

(A)  Personal Service. When a defendant whose address is

known resides within the United States or a territory sub- ject to the administrative or judicial jurisdiction of  the United States,  personal service of   the notice (without a copy of  the complaint) must be  made in accordance with Rule 4.

(B)  Service by  Publication.

(i)   A  defendant may be   served by publication  only

when the plaintiff’s attorney files a certificate stating that the attorney believes the defendant cannot be  per- sonally served, because after  diligent inquiry within the state where the complaint is filed, the defendant’s place of  residence is still  unknown or, if known, that it is beyond the territorial  limits of  personal service. Service is then made by publishing the notice—once a week for at least 3  successive weeks—in a newspaper published in the county where the property is located or, if there is no such newspaper, in a newspaper with general circulation  where the property is located. Be- fore the last  publication, a copy of   the notice must also be  mailed to every defendant who cannot be  per- sonally  served but  whose place  of   residence is then known. Unknown owners may be  served by publication in  the  same  manner  by  a  notice  addressed  to  ‘‘Un- known Owners.’’

(ii) Service by publication is complete on the date of

the  last  publication. The plaintiff’s attorney  must prove publication and mailing by a certificate, attach

Rule 71.1                 FEDERAL RULES OF  CIVIL PROCEDURE                                                                 88

a printed copy of  the published notice, and mark on the copy the newspaper’s name and the dates of  publi- cation.

(4)  Effect of  Delivery and Service. Delivering  the notice to the

clerk and serving it  have the same effect as serving a sum- mons under Rule 4.

(5)  Amending  the  Notice; Proof of   Service and Amending the

Proof. Rule 4(a)(2) governs amending  the  notice.  Rule 4(l)  gov- erns proof of  service and amending it.

(e)  APPEARANCE OR  ANSWER.

(1) Notice of  Appearance. A defendant that has no objection or

defense to the taking of  its property may serve a notice of  ap- pearance designating the property in which it claims an inter- est. The defendant must then be  given notice of  all later pro- ceedings affecting the defendant.

(2)  Answer. A  defendant that  has an objection or defense to

the taking must serve an answer within 21  days after  being served with the notice. The answer must:

(A)  identify the property in which the defendant claims

an interest;

(B)  state the nature and extent of  the interest; and

(C)  state  all the defendant’s objections and defenses to

the taking.

(3)  Waiver of  Other Objections and Defenses; Evidence on  Com-

pensation. A  defendant waives all objections and defenses not stated in its answer. No  other pleading or motion asserting an additional objection or defense is allowed. But at the trial on compensation, a defendant—whether or not it  has previously appeared or answered—may present evidence on the amount of compensation to be  paid and may share in the award.

(f)  AMENDING PLEADINGS. Without  leave of  court, the plaintiff

may—as often as it wants—amend the complaint at any time be- fore the trial  on compensation. But no amendment may be  made if it would result in a dismissal inconsistent with Rule 71.1(i)(1) or (2).  The plaintiff need not serve a copy of  an amendment, but must serve notice of  the  filing, as provided in Rule 5(b), on every af- fected party who has appeared and, as provided in Rule 71.1(d), on every affected party who has not appeared. In addition, the plain- tiff must give the clerk at least one copy of  each amendment for the defendants’ use, and additional copies at  the request of  the clerk or a defendant. A  defendant may appear or answer in the time  and manner and with the  same effect as provided in Rule

71.1(e).

(g)  SUBSTITUTING PARTIES. If a defendant dies, becomes incom-

petent, or transfers an interest after being joined, the court may, on motion and notice of  hearing, order that  the proper party be substituted. Service of  the motion and notice on a nonparty must be  made as provided in Rule 71.1(d)(3).

(h)  TRIAL OF THE ISSUES.

(1)  Issues Other Than  Compensation; Compensation. In an ac-

tion involving eminent domain under federal law, the court tries all issues, including compensation, except when com- pensation must be  determined:

(A)   by any tribunal  specially constituted  by a federal

statute to determine compensation; or

(B)  if there is no such tribunal, by a jury when a party demands one within the time to answer or within any addi- tional time the court sets, unless the court appoints a commission.

(2)  Appointing a  Commission; Commission’s Powers and Report.

(A)   Reasons for   Appointing. If a party has demanded a jury, the court may instead appoint a three-person com- mission to determine compensation because of  the char- acter,  location, or quantity  of   the property to  be   con- demned or for other just reasons.

(B)  Alternate Commissioners. The court may appoint up to two  additional  persons to  serve  as  alternate   commis- sioners to hear the case and replace commissioners who, before a decision is filed, the  court  finds unable or dis- qualified to  perform their  duties.  Once the  commission renders its final decision, the court must discharge any al- ternate who has not replaced a commissioner.

(C)  Examining the Prospective Commissioners. Before mak- ing its appointments, the court must advise the parties of the identity  and qualifications of   each prospective  com- missioner and alternate, and may permit the parties to ex- amine them. The parties may not suggest appointees, but for good cause may object to a prospective commissioner or alternate.

(D)   Commission’s Powers and  Report.  A  commission has the powers of  a master under Rule 53(c). Its action and re- port are determined by a majority. Rule 53(d), (e), and (f) apply to its action and report.

(i)  DISMISSAL OF THE ACTION OR  A  DEFENDANT. (1) Dismissing the Action.

(A)   By the Plaintiff. If no compensation hearing on a piece of  property has begun, and if the plaintiff has not ac- quired title  or a lesser interest  or taken possession, the plaintiff may, without a court order, dismiss the action as to that property by filing a notice of  dismissal briefly de- scribing the property.

(B)  By Stipulation. Before a judgment is entered vesting the plaintiff with title or a lesser interest in or possession of  property, the plaintiff and affected defendants may, without a court order, dismiss the action in whole or in part by filing a stipulation of  dismissal. And if the parties so  stipulate, the court may vacate a judgment already en- tered.

(C)  By Court Order. At any time before compensation has been determined and paid, the court may, after a motion and hearing, dismiss the action as to a piece of  property. But if the plaintiff has already taken title, a lesser inter- est, or possession as to  any part  of   it,  the court must award compensation for the title,  lesser interest,  or pos- session taken.

(2)  Dismissing a  Defendant. The court  may at  any time  dis- miss a defendant who was unnecessarily or improperly joined. (3)  Effect. A  dismissal is without prejudice unless otherwise

stated in the notice, stipulation, or court order.

(j)  DEPOSIT AND ITS DISTRIBUTION.

(1)  Deposit. The plaintiff must deposit with the court any

money required by law as a condition to the exercise of  emi- nent domain and may make a deposit when allowed by stat- ute.

(2)  Distribution; Adjusting Distribution. After  a  deposit,  the

court and attorneys  must expedite the proceedings so   as to distribute the deposit and to determine and pay compensation. If the  compensation finally awarded to a defendant exceeds the  amount distributed to  that  defendant, the  court must enter judgment against the plaintiff for the deficiency. If the compensation awarded to a defendant is less than the amount distributed to that defendant, the court must enter judgment against that defendant for the overpayment.

(k) CONDEMNATION UNDER A  STATE’S  POWER OF EMINENT DOMAIN.

This rule governs an action involving eminent domain under state law.  But if state  law provides for trying an issue by jury—or for trying the issue of  compensation by jury or commission or both— that law governs.

(l)  COSTS. Costs are not subject to Rule 54(d).

(As  added Apr. 30, 1951, eff. Aug. 1, 1951; amended Jan. 21, 1963, eff. July 1,  1963;  Apr. 29,  1985,  eff. Aug. 1,  1985;  Mar. 2,  1987,  eff. Aug.

1,  1987;  Apr. 25,  1988,  eff. Aug. 1,  1988;  Pub. L. 100–690,  title  VII,

§ 7050,  Nov. 18,  1988,  102  Stat. 4401;  Apr. 22,  1993,  eff. Dec. 1,  1993; Mar. 27,  2003,  eff. Dec. 1,  2003;  Apr. 30,  2007,  eff. Dec. 1,  2007;  Mar.

26, 2009, eff. Dec. 1, 2009.)

Rule 72.  Magistrate Judges: Pretrial Order

(a) NONDISPOSITIVE MATTERS. When a pretrial matter not dis- positive of  a party’s claim or defense is referred to a magistrate judge to  hear and decide, the  magistrate  judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A  party may serve and file ob- jections to the order within 14 days after being served with a copy. A  party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of  the order that  is clearly erroneous or is contrary to law.

(b)  DISPOSITIVE  MOTIONS AND PRISONER  PETITIONS.

(1)  Findings and Recommendations. A  magistrate judge must

promptly conduct the required proceedings when assigned, without the parties’ consent, to hear a pretrial matter disposi- tive of  a claim or defense or a prisoner petition  challenging the conditions of  confinement. A  record must be  made of  all evidentiary proceedings and may, at  the  magistrate  judge’s discretion, be  made of  any other proceedings. The magistrate judge must enter a recommended disposition, including, if ap- propriate,  proposed findings of  fact. The clerk must promptly mail a copy to each party.

(2)  Objections. Within 14 days after being served with a copy

of  the recommended disposition, a party  may serve and file specific written objections to the proposed findings and recom- mendations. A  party  may respond to another  party’s objec- tions within 14 days after being served with a copy. Unless the

district  judge orders otherwise, the objecting party must promptly arrange for transcribing the record, or whatever por- tions of  it the parties agree to or the magistrate judge consid- ers sufficient.

(3) Resolving Objections. The district judge must determine de novo any part of  the magistrate judge’s disposition that  has been properly objected to. The district  judge may accept, re- ject, or modify the recommended disposition; receive further evidence; or return the matter  to the magistrate judge with instructions.

(As  added Apr. 28, 1983, eff. Aug. 1, 1983; amended Apr. 30, 1991, eff. Dec. 1,  1991;  Apr. 22,  1993,  eff. Dec. 1,  1993;  Apr. 30,  2007,  eff. Dec.

1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 73.  Magistrate Judges: Trial by  Consent; Appeal

(a) TRIAL BY   CONSENT. When authorized  under 28 U.S.C. § 636(c), a magistrate judge may, if all parties consent, conduct a civil ac- tion or proceeding, including a jury or nonjury trial.  A  record must be  made in accordance with 28 U.S.C. § 636(c)(5).

(b)  CONSENT PROCEDURE.

(1)  In General. When a magistrate  judge has been designated to conduct civil actions or proceedings, the clerk must give the  parties written  notice of   their  opportunity to  consent under 28  U.S.C. § 636(c). To   signify their consent, the parties must jointly or separately file a statement consenting to the referral. A district judge or magistrate judge may be  informed of  a party’s response to the clerk’s notice only if all parties have consented to the referral.

(2)  Reminding the Parties About Consenting. A  district  judge, magistrate judge, or other court official may remind the par- ties of  the magistrate  judge’s availability,  but must also ad- vise them that  they are free to withhold consent without ad- verse substantive consequences.

(3)  Vacating a  Referral. On  its  own for good cause—or when a party shows extraordinary circumstances—the district judge may vacate a referral to a magistrate judge under this rule.

(c)    APPEALING   A     JUDGMENT.    In  accordance  with  28   U.S.C.

§ 636(c)(3),  an appeal from a judgment entered at  a magistrate judge’s direction may be  taken to the court of  appeals as would any other appeal from a district-court judgment.

(As  added Apr. 28, 1983, eff. Aug. 1, 1983; amended Mar. 2, 1987, eff. Aug. 1,  1987;  Apr. 22,  1993,  eff. Dec. 1,  1993;  Apr. 11,  1997,  eff. Dec.

1, 1997; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 74.  [Abrogated (Apr.  11,  1997, eff.  Dec. 1, 1997).] Rule 75.  [Abrogated (Apr.  11,  1997, eff.  Dec. 1, 1997).] Rule 76.  [Abrogated (Apr.  11,  1997, eff.  Dec. 1, 1997).]

TITLE X.  DISTRICT COURTS AND CLERKS: CONDUCTING BUSINESS; ISSUING ORDERS

Rule  77.   Conducting  Business;  Clerk’s Authority;  Notice  of   an

Order or  Judgment

(a) WHEN COURT IS  OPEN. Every  district court is considered al- ways open for filing  any  paper,  issuing  and  returning  process, making a motion, or entering an order.

(b)  PLACE FOR TRIAL AND OTHER PROCEEDINGS. Every trial on the

merits must be  conducted in open court and, so  far as convenient, in a regular courtroom. Any other act or proceeding may be  done or conducted by a judge in chambers, without the attendance  of the clerk or other court official, and anywhere inside or outside the  district.  But no hearing—other than  one ex   parte—may  be conducted outside the district unless all the affected parties con- sent.

(c)  CLERK’S  OFFICE HOURS; CLERK’S  ORDERS.

(1)   Hours. The  clerk’s  office—with a  clerk  or  deputy  on

duty—must be  open during business hours every day except Saturdays, Sundays, and legal holidays. But a court may, by local rule or order, require that the office be  open for specified hours on Saturday or a particular legal holiday other than one listed in Rule 6(a)(4)(A).

(2)  Orders. Subject  to the court’s power to suspend, alter, or

rescind the clerk’s action for good cause, the clerk may: (A)  issue process;

(B)  enter a default;

(C)  enter a default judgment under Rule 55(b)(1); and

(D)   act on any other matter that does not require the

court’s action.

(d)  SERVING NOTICE OF AN  ORDER OR  JUDGMENT.

(1) Service. Immediately after entering an order or judgment,

the clerk must serve notice of  the entry, as provided in Rule

5(b), on each party  who is not in default for failing to appear. The clerk must record the service on the docket. A  party also may serve notice of  the entry as provided in Rule 5(b).

(2)  Time to  Appeal Not  Affected by  Lack of  Notice. Lack of  no-

tice of   the entry  does not affect the time for appeal or re- lieve—or authorize the court to relieve—a party for failing to appeal within the time allowed, except as allowed by Federal Rule of  Appellate Procedure (4)(a).

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

1,  1963; Dec. 4,  1967,  eff. July 1,  1968; Mar. 1,  1971,  eff. July 1,  1971; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 23,

2001, eff. Dec. 1, 2001; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 78.  Hearing Motions; Submission on  Briefs

(a) PROVIDING A  REGULAR SCHEDULE FOR ORAL HEARINGS. A court may establish regular times and places for oral hearings on mo- tions.

(b)  PROVIDING FOR  SUBMISSION ON   BRIEFS. By   rule or order, the

court  may provide for submitting  and determining  motions on briefs, without oral hearings.

(As  amended Mar. 2,  1987,  eff. Aug. 1,  1987;  Apr. 30,  2007,  eff. Dec.

1, 2007.)

Rule 79.  Records Kept by  the Clerk

(a) CIVIL DOCKET.

(1)  In General. The clerk must keep a record known as the

‘‘civil docket’’ in the form and manner prescribed by the Di- rector  of   the  Administrative  Office of   the  United States Courts with the  approval of   the  Judicial  Conference of   the United States. The clerk must enter each civil action in the docket. Actions must  be   assigned consecutive file numbers, which must be  noted in the docket where the first entry of  the action is made.

(2)  Items to  be  Entered. The following items must be  marked

with the file number and entered chronologically in the dock- et:

(A)  papers filed with the clerk;

(B)  process issued, and proofs of  service or other returns

showing execution; and

(C)  appearances, orders, verdicts, and judgments.

(3) Contents of  Entries; Jury Trial Demanded. Each entry must

briefly show the nature of  the paper filed or writ issued, the substance of  each proof of  service or other return, and the sub- stance and date of  entry of  each order and judgment. When a jury trial  has been properly demanded or ordered, the clerk must enter the word ‘‘jury’’ in the docket.

(b)  CIVIL  JUDGMENTS   AND ORDERS. The clerk  must  keep a copy

of  every final judgment and appealable order; of  every order af- fecting title  to or a lien on real or personal property; and of  any other order that the court directs to be  kept. The clerk must keep these in the form and manner prescribed by the Director of  the Administrative  Office of   the United States  Courts with the ap- proval of  the Judicial Conference of  the United States.

(c)  INDEXES; CALENDARS. Under the court’s direction, the clerk

must:

(1)  keep indexes of  the docket and of  the judgments and or-

ders described in Rule 79(b);  and

(2)  prepare calendars of  all actions ready for trial,  distin-

guishing jury trials from nonjury trials.

(d)  OTHER RECORDS. The clerk must keep any other records re-

quired by the Director of  the Administrative  Office of  the United States Courts with the approval of  the Judicial Conference of  the United States.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.

20, 1949; Jan. 21, 1963, eff. July 1, 1963; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 80.  Stenographic Transcript as  Evidence

If stenographically reported testimony at a hearing or trial  is admissible in evidence at  a later  trial,  the  testimony may be proved by a transcript certified by the person who reported it.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 30, 2007, eff. Dec.

1, 2007.)

TITLE XI. GENERAL PROVISIONS

Rule 81.  Applicability of the Rules in General; Removed Actions

(a) APPLICABILITY TO  PARTICULAR PROCEEDINGS.

(1)  Prize Proceedings. These rules  do  not apply to prize pro- ceedings in admiralty governed by 10 U.S.C. §§ 7651–7681.

(2)  Bankruptcy. These rules apply to bankruptcy proceedings

to the extent  provided by the Federal Rules of   Bankruptcy

Procedure.

(3)  Citizenship. These rules apply to proceedings for admis-

sion to citizenship to the extent that the practice in those pro- ceedings is not specified in federal statutes and has previously conformed to the practice in civil actions. The provisions of  8

U.S.C. § 1451 for service by publication and for answer apply in proceedings to cancel citizenship certificates.

(4)  Special Writs. These rules apply to proceedings for habeas

corpus and for quo warranto to the extent that the practice in those proceedings:

(A)  is not specified in a federal statute,  the Rules Gov-

erning Section 2254 Cases, or the Rules Governing Section

2255 Cases; and

(B)  has previously conformed to the practice in civil ac-

tions.

(5)  Proceedings Involving  a  Subpoena. These rules  apply  to

proceedings to compel testimony or the production of  docu- ments through a subpoena issued by a United States officer or agency under a federal statute,  except as otherwise  provided by statute, by local rule, or by court order in the proceedings. (6)  Other Proceedings. These rules, to the extent  applicable, govern proceedings under the following laws, except as these

laws provide other procedures:

(A)  7 U.S.C. §§ 292,  499g(c), for reviewing  an order  of  the

Secretary of  Agriculture;

(B)  9 U.S.C., relating to arbitration;

(C)  15 U.S.C. § 522, for reviewing an order of  the Secretary

of  the Interior;

(D)  15  U.S.C. § 715d(c), for reviewing  an order  denying  a

certificate of  clearance;

(E)  29 U.S.C. §§ 159, 160, for enforcing an order of  the Na-

tional Labor Relations Board;

(F) 33 U.S.C. §§ 918, 921, for enforcing or reviewing a com-

pensation order under the Longshore and Harbor Workers’ Compensation Act; and

(G)  45 U.S.C. § 159,  for reviewing an arbitration  award in

a railway-labor dispute.

(b)  SCIRE  FACIAS  AND MANDAMUS. The writs  of  scire facias and

mandamus are  abolished. Relief previously available  through them  may be   obtained by appropriate  action  or motion  under these rules.

(c)  REMOVED ACTIONS.

(1)  Applicability. These rules apply to a civil action  after  it

is removed from a state court.

(2)  Further Pleading. After removal,  repleading  is unneces-

sary unless the court orders it. A  defendant who did not an- swer before removal must answer or present other defenses or objections under these rules within the longest of  these peri- ods:

(A)   21  days after  receiving—through service or other-

wise—a copy of  the initial pleading stating the claim for relief;

(B)  21 days after being served with the summons for an initial pleading on file at the time of  service; or

(C)  7 days after the notice of  removal is filed.

(3) Demand for  a Jury Trial.

(A)   As   Affected  by   State  Law.  A  party  who, before re-

moval, expressly demanded a jury trial in accordance with state law need not renew the demand after removal. If the state  law did not require an express demand for a jury trial, a party need not make one after removal unless the court orders the parties to do  so  within a specified time. The court must so  order at a party’s request and may so order on its  own. A  party  who fails to make a demand when so  ordered waives a jury trial.

(B)   Under Rule 38.  If all necessary pleadings have been

served at the time of  removal, a party entitled to a jury trial under Rule 38 must be  given one if the party serves a demand within 14 days after:

(i)  it files a notice of  removal; or

(ii) it is served with a notice of  removal filed by an-

other party. (d)  LAW APPLICABLE.

(1)  ‘‘State Law’’ Defined. When these rules refer to state law,

the term ‘‘law’’ includes the state’s statutes and the state’s ju- dicial decisions.

(2)  ‘‘State’’ Defined. The term ‘‘state’’ includes, where appro-

priate, the District of  Columbia and any United States  com- monwealth or territory.

(3) ‘‘Federal Statute’’ Defined in the District of  Columbia. In the

United States District Court for the District of  Columbia, the term ‘‘federal statute’’ includes any Act of  Congress that  ap- plies locally to the District.

(As  amended Dec. 28,  1939,  eff. Apr. 3,  1941; Dec. 27,  1946,  eff. Mar.

19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 30, 1951, eff. Aug. 1, 1951; Jan. 21,  1963,  eff. July 1,  1963;  Feb. 28,  1966,  eff. July 1,  1966;  Dec.

4,  1967,  eff. July 1,  1968; Mar. 1,  1971,  eff. July 1,  1971; Mar. 2,  1987, eff. Aug. 1, 1987; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 29, 2002, eff. Dec.

1, 2002; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 82.  Jurisdiction and Venue Unaffected

These rules do  not extend or limit the jurisdiction of  the district courts or the venue of  actions in those courts. An   admiralty or maritime claim under Rule 9(h)  is not a civil action for purposes of  28 U.S.C. §§ 1391–1392.

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

1, 1966; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 83.  Rules by  District Courts; Judge’s Directives

(a) LOCAL RULES.

(1)  In General. After giving public notice and an opportunity

for comment, a district court, acting by a majority of  its dis- trict  judges, may adopt and amend rules governing its prac- tice. A local rule must be  consistent with—but not duplicate— federal statutes  and rules adopted under 28 U.S.C. §§ 2072 and

2075, and must conform to any uniform numbering system pre-

scribed by the  Judicial  Conference of   the  United States.  A

local rule takes  effect on the  date specified by the district court and remains in effect unless amended by the court or ab- rogated by the judicial council of  the circuit. Copies of  rules and amendments must, on their adoption, be  furnished to the judicial council and the Administrative  Office of  the United States Courts and be  made available to the public.

(2)  Requirement of  Form. A local rule imposing a requirement of  form must not be  enforced in a way that  causes a party to lose any right because of  a nonwillful failure to comply.

(b)   PROCEDURE  WHEN THERE  IS  NO   CONTROLLING  LAW. A  judge may regulate practice in any manner consistent with federal law, rules adopted under 28  U.S.C. §§ 2072  and 2075,  and the district’s local rules. No  sanction or other disadvantage may be  imposed for noncompliance with any requirement not in federal law, federal rules, or the local rules unless the alleged violator has been fur- nished in the particular  case with actual notice of  the require- ment.

(As  amended Apr. 29,  1985,  eff. Aug. 1,  1985; Apr. 27,  1995,  eff. Dec.

1, 1995; Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 84.  Forms

The forms in the Appendix suffice under these rules and illus- trate the simplicity and brevity that these rules contemplate.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 30, 2007, eff. Dec.

1, 2007.)

Rule 85.  Title

These rules may be  cited as the Federal Rules of  Civil Proce- dure.

(As  amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Rule 86.  Effective Dates

(a) IN GENERAL. These rules and any amendments take effect at the  time  specified by the  Supreme Court, subject to  28  U.S.C.

§ 2074. They govern:

(1)  proceedings in an action commenced after their effective date; and

(2) proceedings after that  date in an action then pending un- less:

(A)  the Supreme Court specifies otherwise; or

(B)   the court determines that  applying them in a par- ticular action would be  infeasible or work an injustice.

(b)   DECEMBER  1,  2007  AMENDMENTS. If any  provision  in  Rules

1–5.1,  6–73, or 77–86 conflicts with another law, priority in time for the  purpose of   28  U.S.C. § 2072(b)   is not  affected by the  amend- ments taking effect on December 1, 2007.

(As  amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.

20,  1949;  Apr. 17,  1961,  eff. July 19,  1961;  Jan. 21 and Mar. 18,  1963, eff. July 1, 1963; Apr. 30, 2007, eff. Dec. 1, 2007.)

APPENDIX OF FORMS

As  added April 30, 2007, effective December 1, 2007 (See Rule 84)

(97)

APPENDIX OF FORMS

Fonn 1. Caption. (Usc on every summons, complaint, answer, motion, or other document.)

United States District Court for  the

—- District of                _

A B, Plaintiff

v.

C D, Defendant

v.

E F, Third-Party Defendant

(Use if needed.)

Civil Action No.            

(Name of Document)

Form 2.  Date, Signature, Address, E-mail Address, and Telephone Number.

(Use at the conclusion of pleadings  and other papers that require a signature.)

Date               _

(Signature of the  attorney or unrepresented party)

(Printed name) (Address)

(E-mail address) (Telephone number)

(As  amended Mar. 26, 2009, eff. Dec. 1, 2009.)

(As  amended Mar. 26, 2009, eff. Dec. 1, 2009.)

Fonn 5.Notice of a Lawsuit and Request to Waive Service of a Summons. (Caption- See Form !.)

To <name the defendant- or if the defendant is a cruporation  partnership  or association name an of1icer or

agent authorized to receive service>:

Why  are you getting this?

A lawsuit has  been filed  against youor the entity you represent, in this court under the  number shown above.    A copy of the complaint is attached.

This  is not a summonsor an official  notice from  the  court. It is a request that, to avoid  expenses, you waive formal service of a summons by signing and  returning the  enclosed waiver.  To avoid  these expenses, you must retum the  signed waiver within <give at least 30 days  or at least 60 days  if the  defendant is outsjde any judicial  district of the  United States) from  the  date shown below,  which  is the  date this notice was  sent.    Two copies  of the  waiver  form  are enclosed?  along  with  a stamped. self-addressed envelope or other prepaid means for returning one copy. You may  keep  the  other copy.

What happens next?

If you return the signed waiver. I will file  it with  the court. The action will then proceed as if you had been  served on  the  date the  waiver is flied.. but  no summons will be served on  you  and  you  will  have  60  days from  the  date this  notice  is sent (see the  date below) to answer the  complaint (or 90 days  if this notice  is sent to you outside any  judicial district of the United States).

If you do not  retum the  signed waiver within the time indicated. I will arrange to have the  summons and  complaint served on  you.   And  I will  ask  the  court to require you. or  the  entity you represent, to pay  the expenses of making service.

Plea.’IOe read the  enclosed statement about the  duty to avoid  unnecessary expenses. I certify that this  request is being sent to you on the date below.

(Date and  sign – See Fonn 2.)

Form 6.  Waiver of the Service of Summons.

(Caption- See Form 1.)

To name the plaintiffs attorney or the unrepresented plaint:iff.

I  have received your  request to  waive  service of a summons in  this   action along  with  a copy  of the complaint,. two copies of this waiver fonn, and a prepaid means of returning one signed copy of the form  to you.

I, or the  entity I represenagree to save  the expense of serving a summons and complaint in this case.

I understand that I. or  the  entity I represent, will  keep  all  defenses or objections to  the  lawsuit, the court’s jurisdiction, and the venue of the  action, but that I waive any  objections to the absence of a summons or of service.

I also  understand that 1, or  the entity I represenmust f”Ile and serve an answer or  a motion under Rule  12 within 60 days  from              , the  date when this  request was  sent (or 90 days  if it was sent outside the United States). IfI fail to do so, a default judgment will be entered against me or the entityI represent.

(Date and  sign- See Form 2.)

(Attach the  following  to Fonn 6.)

Duty to Avoid Unnecessary Expenses of Serving a Summons

Rule  4  of the  Federal  Rules of Civil  Procedure requires certain defendants to  cooperate in  saving unnecessary expenses of serving a summons and  complaint.  A defendant who  is  located in  the  United States and who fails  to return a signed waiver of service requested by  a plaintiff located in  the United States will be required to pay  the expense..’i of service, unless the defendant shows good cause for the failure.

“Good cause” does  not  include a belief that the  lawsuit is groundless, or that it has been  brought in an improper venue. or that the  court  has no jurisdiction over  this matter or over  the defendant or the defendant’s property.

If the waiver is signed and  returned. you can  still make these and all other defense.”) and  objections. but you cannot object  to the absence of a summons or of service.

If you waive  service. then  you must,. within the  time specified on the waiver fonnserve an answer or a motion under Rule  12 on the plaintiff and file a copy  with  the  court. By signing and returning the  waiver form, you are  allowed more time to respond than if a summons had  been served.

Fonn 7.  Statement of Jurisdiction.

(For  diversity-of-citizenship  jurisdiction.)     The   plaintiff  is  [a   citizen  of  [a   corporation incorporated  under  the  laws  of with   its  principal   place  of business in                             –                                                                       The defendant is [a citizen of New  York] [a  corpomtion incorporated under the  Jaws  ofwith  its principal place  of  business in                                      – The  amount in  controversywithout interest  and costs, exceeds the sum or value specified by 28 U.S.C. § 1332.

b.              (For  federal questionjurisdiction.) This action arises under [the United States Constitution,

article  or amendment and  the  section] [a  United States  treaty [a  federal statute, _U.S.C.

§_j.

c.                           (For a claim in the  admiralty or  maritime jurisdiction.)  This is  a case  of admiralty or  maritime jurisdiction.   (To invoke admiralty status under Rule 9(11) usc  the   following:   This is an admiralty or maritime claim  within the meaning of Rule 9(h).)

Form 8.  Statement of Reasons for Omitting a Party.

(If a person  who  ought to be IDllde a party under Rule 19(a) is not  named. include this  statement in  accordance

with Rule 19(c).)

This complaint does  not  join  as a party who [is  not  subject to this court’s personal jurisdiction] [cannot be made a party without depriving this court of subject-matter jurisdiction] because  state the reason.

In  accordance with  Rule  25(a)  name  the  person. who is  [a party to  this action] [a  representative of or successor to  the deceased party] notes the  death during the pendency of this action of [describe a.s   parfv              in this action].

(Date and sign  – See Form 2.)

Fonn 10.  Complaint to Recover a Sum Certain.

(Caption – See Form 1.)

1.              (Statement of Jurisdiction- See Form 7.)

(Use one or more of the following as appropriate and include a demand  for judgment.)

(a)           On a Promissory Note

2.             On      Q;jg      , the  defendant executed and delivered a note  promising to pay  the  plaintiff on

!i!mL._ the  sum  of $                  with  interest at  the  rate  of _ percent.    A copy  of the  note  (is

attached as Exhibit A] [is sununarized as follows:                                  .]

3.             The defendant has not paid  the amount owed.

(b)             On an Account

2.             The defendant owes the plaintiff$                   according to the account set out in Exhibit A.

(c)            For Goods Sold and Delivered

2.             The defendant owes  the  plaintiff $                     for goods  sold  and delivered by the  plaintiff to the defendant from …llil&_ to .

{d)          For Money Lent

2.             The  defendant owes the  plaintiff $                     for  money  lent by the  plaintiff to the defendant on

!1§k_.

(e)            For Money Paid by Mistake

2.             The  defendant owes  the  plaintiff $

for  money paid  by  mistake to  the defendant on

4M!L under these circumstances: describe with particularitv in accordance with  Rule 9fbl.

(f)             For Money Had and Received

2.              The defendant owes  the plaintiff $                       for  money  that was  received from  on

@& to be paid  by the defendant to the plaintiff.

Demand  for Judgment

costs.

Therefore, the  plaintiff demands judgment against the  defendant for    $                                  , plus interest and

(Date and  sign  – See Form 2.)

1.             (Statement of Jurisdiction – See Fonn 7.)

2.             On. at. the defendant negligently drove a motor vehicle against the plaintiff.

3.             As a result, the  plaintiff was  physically injured, lost  wages or  income, suffered physical and

mental  pain, and incurred medical  expenses of$                      .

Therefore, the plaintiff demands judgment against the  defendant for  $                                , plus  costs. (Date and  sign  -See Form 2).

Form 12.  Complaint for Negligence When the Plaintiff Does Not  Know Who Is Responsible. (Caption- See Fonn J.)

I.            (Statement of Jurisdiction- See Fonn 7.)

2.             On  . at . defendant                                   name or  defendant ..ll!!lii£_or both of them willfully or

recklessly or negligently drove, or caused  to be driven. a motor vehicle  against the plaintiff.

3.             As a result. the  plaintiff was  physically iojured, lost  wages or  income, suffered mental aod physical pain, and incurred medical expenses of$—·

costs.

Therefore, the plaintiff demands judgment against one  or  both  defendants for  $ —–• plus

(Date and sign  -See Fonn 2.)

1.             (Statement of Jurisdiction- See Form 7.)

2.              At the times below. the defendant owned  and operated  in interstate commerce a railroad  line

tbat passed through a tunnel located at—·

3.              On. the plaintiff was working to repair and enlarge the tunnel to make it convenient

and safe for use in interstate commerce.

4.             During this work,  tbe  defendant, as tbe  employer, negligently put   tbe  plaintiff to  work in  a section of tbe tunnel tbat tbe defendant had  left unprotected and  unsupported.

5.              The defendant’s negligence caused tbe  plaintiff  to  be  injured by  a rock  that fell  from an

unsupported portion of the  tunnel.

6.                                   As a result, tbe  plaintiff was  physically injured, lost  wages or  income, suffered mental and physical pain, and  incurred medical expenses of  $  —-

Therefore, tbe plaintiff demands judgment against the  defendant for  $                                  , and  costs. (Date and sign  -See Form 2.)

I.            (Statement of Jurisdiction- See Form 7.)

2.             At the  times  below.  the  defendant owned  and  operated  the  vesseland used  it to transport  cargo for hire by water in interstate and foreign commerce.

3.             On .J!ML, at. the defendant hired the plaintiff under seamen’s articles of customary fonn  for a voyage  from               to                     and return  at a wage  of $                                          a month and found.  which is equal to a shore  worker’s wage of$       a month.

4.              On.  the  vessel   was  at  sea  o(Dn etshceribretuthren  wvoeyaathger.  and  the

condition of the vessel.)

5.              (Describe as in Fonn 11 the defendant’s negligent conduct.)

6.             As  a result  of the  defendant’s negligent conduct  and  the  unseaworthiness of the  vessel, the plaintiff was  physically injured, has been  incapable of any  gainful activity, suffered mental and  physical pain, and  has  incurred medical expenses of  $           .

Therefore, the  plaintiff demands judgment against the defendant for$                          , plus  costs. (Date and  sign  -See Form 2.)

2.                                   Onat ..Jlli!£L. the  defendant converted to the  defendant’s own  use  property owned by the  plaintiff. The  property converted consists of   describe.

3.             The property is worth $                      .

Therefore, the plaintiff demands judgment against the defendant for  $                               , plus  costs. (Dare  and  sign  – See Form 2.)

1.             Plaintiff  J1illJl!i.. has  filed against defendant J1illJl!i.. a complaint. a copy of which  is attached.

2.             (State grounds entitling defendant’s name  to recover from third partv defendant’s name for (all or an identified share)  of any judgment for plaintiffs name against defendant’s name.)

Therefore, the  defendant demands judgment against  third-party  defendant’s name  for

identified share of sums that may  be adjudged against the  defendant in the plaintiffs favor. (Date and sign  -See Form 2.)

2.             On ….ltML_, the  parties agreed to the contract [attached as Exhibit A][summarize the contract].

3.             As agreed, the  plaintiff tendered the purchase price  and  requested a conveyance of the land,

but the defendant refused  to accept the money or make a conveyance.

4.             The plaintiff  now offers to pay the purchase price.

Therefore, the plaintiff demands that:

(a)           the  defendant be required to specifically perform the agreement and  pay  damages of

$ —plus interest and costs,  or

(b)            if specific performance is not ordered, the defendant be required to pay damages of

$                 , plus interest and costs.

(Date and  sign  – See Fonn 2.)

(Caption – See Form I.)

1.             (Statement of Jurisdiction -See Form 7.)

2.             On  . United States Letters Patent  No.

were  issued to the plaintiff for  an

invention in  an  electric motor.  The  plaintiff  owned  the  patent throughout the  period  of the defendant’s infringing acts and still  owns the patent.

3.                                   The  defendant has infringed and  is still  infringing the  Letters Patent by  making, selling, and using electric motors  that  embody  the patented inventioand  the defendant will continue to do so unless enjoined by this court.

4.             The plaintiff has  complied with  the starutory requirement of placing a notice  of the  Letters Patent on all     electric  motors  it manufactures and  sells  and has  given  the defendant written notice of the infringement.

Therefore,  the plaintiff  demands:

(a)            a preliminary and final injunction against the continuing  infringement;

(b)            an  accounting for damages; and

(c)            interest and  costs.

(Date and sign  – See Form 2.)

1.             (Statement of Jurisdiction- See Form 7.)

2.             Before. the  plaintiff, a United States citizen, wrote  a bock entitled                                   _

3.                                   The  bock is an  original work  that may  be copyrighted under United States law.   A copy of the book is attached as Exhibit A.

4.              Between  _!h!1L_  and  . the plaintiff applied to  the   copyright office  and   received a

certificate of registration dated                   and identified as     date   class   number .

5.             Sincethe plaintiff has either published or licensed for publication all copies of the bock

in compliance with the copyright  laws and has remained the sole owner of the copyright.

6.             After  the copyright was issued, the defendant infringed the copyright by publishing and  selling a book entitled                       , which was  copied  largely from  the  plaintiffs bock.   A copy of the defendant’s book is attached as Exhibit B.

7.             The plaintiff has notified the  defendant in writing of the infringement.

8.             The   defendant continues to  infringe the   copyright  by  continuing  to  publish and  sell   the infringing book in  violation of the  copyright, and further has engaged in  unfair trade practices and unfair competition in connection with its  publication  and sale of the  infringing book, thus causing irreparable  damage.

Therefore, the  plaintiff demands that:

(a)           until this  case  is  decided  the  defendant and  the defendant’s agents be enjoined from

disposing of any copies of the defendant’s book by sale or otherwise;

(b)           the   defendant  account for   and   pay   a•  damages to  the  plaintiff all   profits and advantages gained  from unfair  trade practices and  unfair  competition in  selling the defendant’s bock, and  all  profits and  advantages gained from  infringing the plaintiffs copyright (but no less  than the statutory minimum);

(c)           the   defendant  deliver for  impoundment all   copies  of  the book  in the   defendant’s possession or control  and  deliver  for destruction all  infringing copies  and  all plates. moldsand other materials for making  infringing copies;

(d)           the  defendant pay  the  plaintiff interest, costs, and  reasonable attorney’s fees; and

(e)           the  plaintiff be awarded any  other just relief.

(Date and sign  -See Form 2.)

Fonn 20.  Complaint for Interpleader and Declaratory Relief. (Caption- See Form 1.)

l.           (Statement of Jurisdiction- See Form 7.)

2.             On. the plaintiff  issued  a life insurance policy on the life of   with ….!1i!f!1.§_ as the named beneficiary.

3.             As a condition for keeping the  policy in force,  the  policy required payment of a premium during

the first year and then annually.

4.             The premium due on …JJiH;L was  never paid, and  the  policy lapsed after that date.

5.             On      date  , after the  policy had  lapsed, both  the insured and  the named beneficiary died  in an

automobile collision.

6.             Defendantclaims to be the beneficiary in place ofand has flied  a claim to be paid  the  policy’s full amount.

7.             The   other   two  defendants  are  representatives  of  the   deceased  persons’   estates.     Each defendant has filed  a  claim on  behalf of  each  estate to  receive payment of the policy’s full amount.

8.             If the  policy  was  in  force  at the time of death, the  plaintiff is  in  doubt about who  should be paid.

Therefore, the plaintiff demands that:

(a)           each  defendant be restrained from  commencing any  action against the plaintiff on the policy;

(b)            a judgment be entered that no defendant is entitled to  the  proceeds of the  policy  or any  part of it. but if the court detennines that  the  policy  was  in effect  at the  time  of the  insured’s death, that the  defendants be required to interplead and settle among themselves their rights to the  proceeds, and  that the  plaintiff be discharged from  all liability except to the  defendant determined to be entitled to the  proceeds; and

(c)            the  plaintiff recover its  costs.

(Date and sign  – See Form 2.)

Fonn 21.  Complaint on a Claim for a Debt and to Set Aside a Fraudulent Conveyance

Under Rule l8(b).

(Caption – See Form 1.)

1.             (Statement of Jurisdiction -See Form 7.)

2.              On . defendant                      nwne      signed a note  promising to pay  to the  plaintiff on

the  sum of $                       with interest at the  rate of _ percent.  [The  pleader may,  but need not, attach a copy or plead the note verbatim.]

3.             Defendant -..!1l!!11£_ owes the plaintiff the amount  of the note and interest.

4.              On. defendant -llll1!!L_ conveyed all defendant’s real  and  personal property

iLjm

than all  describe it fillly   to defendant   name    for the  purpose of defrauding the  plaintiff and hindering or delaying the  collection of the  debt.

Therefore, the  plaintiff demands that:

(a)           judgment for$                    , plus costs, be entered against defendant(s)   name(sl; and

(b)            the conveyance to defendant -‘.!il!Jl!L be declared void and  any  judgment granted be made a lien  on the property.

(Date and  sign  – See Form 2.)

Form 30.  Answer Presenting Defenses Under Rule 12(b). (Caption – See Fonn I.)

Responding to Allegations in the Complaint

l.           Defendant admits the  allegations in paragraphs—·

2.             Defendant lacks knowledge or  information sufficient to fonn a  belief  about the  truth of the allegations in paragraphs                 .

3.             Defendant admits  jdentitv part  of the allegation  in  paragraph               and denies or  lacks knowledge  or  infonnation  sufficient  to  fonn   a  belief   about   the  truth   of  the   rest   of  the paragraph.

Failure to State a Claim

4.             The complaint fails to stare a claim upon  which  relief  can be granted.

Failure to Join a Required Party

5.        H there is a debt, it is owed jointly by the  defendant and ..Jli!ll!L_Who is a citizen of—· This  person  can be made  a party  without  depriving this court of jurisdiction over the existing parties.

Affinnative Defense Statute of Limitations

6.             The plaintiffs claim is  barred by  the  statute of  limitations because  it arose more than                      

years before this action  wa.o;; commenced.

Counterclaim

7.             (Set  forth any  counterclaim  in  the  same  way a claim is  pleaded in  a  complaint.   Include  a

further statement of jurisdiction if needed.)

Crossclaim

8.             (Set  forth a crossclaim against  a coparty in the same  way a claim is  pleaded in a complaint.

Include a further statement of jurisdiction if needed.)

(Date and sign-See Fonn 2.)

Form 31.  Answer to a Complaint for Money Had and Received with a Counterclaim for Interpleader.

(Caption – See Form 1.)

Response to the Allegations in the Complaint

(See Fonn 30.) Counterclaim for Interpleader

1.             The defendant received  froma deposit of$                          .

2.             The  plaintiff demands payment of the  deposit because of a purported assignment from . who has notified the defendant that  the assignment is not valid and  who continues to hold the defendant responsible for the deposit.

Therefore, the  defendant demands that:

(a)               be made a party to tbis action;

(b)            the  plaintiff and ..JliYJlL  be required to interplead their respective claims;

(c)                 the court decide  whether the  plaintiff  oror either  of them  is entitled to the deposit and  discharge the defendant of any  liability except to  the  person entitled to the  deposit; and

(d)            the defendant recover costs and attorney’s fees.

(Date and  sign- See Form 2.)

Form  40.      Motion to  Dismiss Under  Rule  12(b) for  Lack  of     Jurisdiction,  Improper  Venue,

Insufficient Service of Process, or Failure to State a Claim.

(Caption – See Fonn  1.)

The defendant moves to dismiss the action because:

I.           the  amount in controversy is less than the sum  or value specified by 28 U.S.C. § 1332;

2.             the defendant is not subject to the  personal jurisdiction of this court;

3.              venue is improper  (this  defendant does not reside  in this  district and no part of the  event..c;;. or omissions giving rise to the claim occurred in the district);

4.              the   defendant  has    not   been    properly  served,  as   shown  by   the    attached  affidavits  of

                          ;or

5.             the complaint fails  to state a claim upon which  relief  can be granted. (Date and sign -See Fonn 2.)

Form 41.  Motion to Bring in a Third-Party Defendant. (Caption -See Form 1.)

The  defendant, as  third-party  plaintiff, moves  for leave  to serve  on lHl:l11£ a summons and  third-party complaint, copies of which are attached.

(Date and  sign- See Form 2.)

Fonn 42.  Motion to Intervene as a Defendant Under Rule 24.

(Caption- See Form  1.)

1.                   name      moves for leave  to intervene as a defendant in this  action  and  to file  the attached answer.

(State grounds under Rule 24(a) or (b).)

2.             The  plaintiff   alleges patent   infringement.   We  manufacture and  sell   to the  defendant the articles involved,  and we have a defense to the plaintiffs claim.

3.             Our defense  presents questions of law and fact that are common to this action.

(Date and  sign-See Form 2.)

[An Intervener’s Answer must be attached. See Form 30.]

Fonn 50.   Request to Produce Documents and Tangible Things, or to Enter onto Land

Under Ru1e 34.

(Caption- See Form 1.)

The  plaintiff    llil!ll!L requests that  the  defendant      llil!ll!L respond within                         days to  the  following

requests:

1.            To produce  and  pennit the  plaintiff to  inspect and  copy and  to  test  or sample the  following documents, including  electronically stored information:

(Describe  each document and  the electronically stored  infonnation, eUher individually or by category.)

(State  the time, place, and manner of the inspection  and any related acts.)

2.             To  produce and   permit the plaintiff to  inspect and  copy following tangible things:

and  to  test  or  sample          the

(Describe each thing, either individually or by category.)

(State  the time, place, and manner of tbe inspection  and any related acts.)

3.             To permit the  plaintiff to enter onto  the  following land  to inspect, photograph. test, or sample

the property or an object or operation  on the property.

(Describe the property and each object or vperation.)

(State  the time and manner of the inspection and any related acts.) (Date and  sign- See Fonn  2.)

Fonn 51.   Request for Admissions Under Rule 36.

(Caption -See Fonn 1.)

The  plaintiffasks  the  defendant             to respond within 30  days to these requests by

admitting. for purposes of this action only and subject to objections to admissibility at trial:

1.             The genuineness of the following documents. copies  of which [are  attached] [are  or have  been

furnished or made available for inspection and  copying].

(List each document.)

2.             The  truth of each  of the following statements:

(List each statement.) (Date and sign  – See Fonn  2.)

(As  amended Apr. 28, 2010, eff. Dec. 1, 2010.)

(As  amended Mar. 26, 2009, eff. Dec. 1, 2009.)

Fonn 61.  Complaint for Condemnation.

(Caption- See Form 1; name as defendants the property and at least  one owner.)

I.              (Statement of Jurisdiction – See Form 7.)

2.             This  is an action  to take  property  under  the  power of eminent domain  and  to  detennine just compensation to be paid to the owners and parties  in interest.

3.             The authority for the taking is                       .

4.             The property is to be used for——–

5.             The  property  to  be  taken   is  (describf:  in  enough  detail  for identification  or  attach  the

description and state ‘1s described in Exhibit  A, attached.’)

6.             The interest to be acquired is——–

7.             The   persons  known  to   the   plaintiff to  have or   claim   an  interest in   the  property are:

————·· (Far each person include the interest claimed.)

8.             There  may  be other persons  who have  or claim  an  interest in the  property  and  whose  names could  not  be  found  after  a  reasonably diligent  search.    They  are  made  parties under  the designation “Unknown Owners.”

Therefore, the plaintiff demands judgment: (a)          condemning the property;

(b)            determining and awarding just compensation; and

(c)            granting any other lawful and  proper relief. (Date and  sign  -See Form 2.)

Fonn 70.  Judgment on a Jury Verdict.

(Caption – See  Fonn 1.)

This action was tried  by a jury  with Judge                       presiding. and  the jury  has rendered a verdict. It is ordered that:

[the plaintiff  recover from the  defendant    the amount of$                              with interest at the  rate of_%. along  with  costs.]

[the plaintiff recover nothing. the action be dismissed on the  merits. and the defendant recover costs from  the plaintiff

Date

Clerk of Court

This action was tried by Judge              without a jury and the following decision was reached:

It is ordered that [the plaintiff .Jll!.!ll!L recover from  the  defendant ……!U!!l!L.. the  amount of$                               , with prejudgment interest at the rate of_%postjudgment interest at the rate  of_%along with costs.] [the plaintiff  recover nothing.  the action  be dismissed on the  merits,. and the defendant  recover costs  from the  plaintiff    name  .]

Date            _

Clerk of Court

Fonn 80.  Notice of a Magistrate Judge”s Availability.

I.           A magistrate judge  is available under title 28 U.S.C.  §   636(c)  to conduct the proceedings in this case,  including a jury  or nonjury trial and the entry of final judgment.  But  a magistrate judge  can be assigned only if all parties voluntarily consent.

2.             You may  withhold your  consent without adverse substantive  consequences.  The  identity of any  party consenting or  withholding consent will  not  be  disclosed to  the  judge  to whom   the case is assigned or to any  magistrate judge.

3.             If a magistrate judge  does  hear your  case,  you  may  appeal directly to a United States court of appeals as you would if a district judge  heard it.

A fonn called Consent to an  Assignment to a United States Magistrate Judge is available from  the court clerk’s office.

I voluntarily consent to have a United States magistrate judge  conduct all  further proceedings in this case,  including a trial. and  order the  entry of final judgment.  (Return this  fonn to the court clerk – not to a judge  or magistrate judge.)

Date                  _

Signature of the Party

Fonn 82.  Order of Assignment to a Magistrate Judge.

(Caption – See Form I.)

636(c).

With  the  parties’  consent  it is ordered  that this  case  be assigned to United States  Magistrate Judge

of this district to conduct all  proceedings and  enter final judgment in  accordance with  28 U.S.C. §

Date                  _

United States District Judge

Rule A                      FEDERAL RULES OF  CIVIL PROCEDURE

134

SUPPLEMENTAL RULES FOR ADMIRALTY OR  MARITIME CLAIMS AND ASSET FORFEITURE ACTIONS 1

Rule A. Scope of Rules

(1) These Supplemental Rules apply to:

(A)  the procedure in admiralty and maritime claims within the meaning of  Rule 9(h)   with respect to the following rem- edies:

(i)  maritime attachment and garnishment, (ii) actions in rem,

(iii) possessory, petitory, and partition actions, and

(iv) actions for exoneration from or limitation  of  liabil- ity;

(B)  forfeiture actions in rem arising from a federal statute;

and

(C)   the  procedure in statutory  condemnation  proceedings analogous to maritime actions in rem, whether within the ad- miralty and maritime jurisdiction or not. Except as otherwise provided, references in these Supplemental Rules to actions in rem include such analogous statutory  condemnation proceed- ings.

(2)  The Federal Rules of  Civil Procedure also apply to the fore- going proceedings except to the extent that  they are inconsistent with these Supplemental Rules.

(As  added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 12, 2006, eff. Dec. 1, 2006.)

Rule B. In  Personam Actions: Attachment and Garnishment

(1)  WHEN AVAILABLE; COMPLAINT, AFFIDAVIT,  JUDICIAL   AUTHOR-

IZATION, AND PROCESS. In an in personam action:

(a) If a defendant is not found within the district when a verified complaint praying for attachment  and the affidavit required  by Rule  B(1)(b) are filed, a verified complaint may contain a prayer for process to attach the defendant’s tangible or intangible  personal property—up to the amount  sued for— in the hands of  garnishees named in the process.

(b)  The plaintiff or the plaintiff’s attorney must sign and file with the complaint an affidavit stating that, to the affiant’s knowledge, or on information and belief, the defendant cannot be  found within the district.  The court must review the com- plaint and affidavit and, if the conditions of  this Rule B  ap- pear to exist, enter an order so  stating and authorizing process of  attachment  and garnishment. The clerk may issue supple- mental process enforcing the court’s order upon application without further court order.

(c)   If the plaintiff or the plaintiff’s attorney  certifies that exigent circumstances make court review impracticable, the clerk must issue the summons and process of  attachment and garnishment. The plaintiff has the burden in any post-attach- ment hearing  under Rule E(4)(f) to show that exigent circum- stances existed.

1 Title amended April 12, 2006, effective December 1, 2006.

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FEDERAL RULES OF  CIVIL PROCEDURE

Rule C

(d)(i) If the property is a vessel or tangible property on board a vessel, the summons, process, and any supplemental process must be  delivered to the marshal for service.

(ii) If the property is other tangible or intangible property,

the summons, process, and any supplemental process must be delivered to a person or organization authorized to serve it, who may be  (A)  a marshal; (B)  someone under contract  with the  United States;  (C)   someone specially appointed by the court for that  purpose; or, (D)   in an action brought by the United States, any officer or employee of  the United States.

(e)  The plaintiff may invoke state-law remedies under Rule

64 for seizure of  person or property for the purpose of  securing satisfaction of  the judgment.

(2)  NOTICE  TO   DEFENDANT. No  default judgment may be  entered

except upon proof—which may be  by affidavit—that:

(a) the complaint, summons, and process of  attachment  or

garnishment have been served on the defendant in a manner authorized by Rule 4;

(b)  the plaintiff or the garnishee has mailed to the defendant

the complaint, summons, and process of  attachment  or gar- nishment, using any form of  mail requiring a return receipt; or

(c)  the plaintiff or the garnishee has tried diligently to give

notice of  the action to the defendant but could not do  so. (3) ANSWER.

(a) By  Garnishee. The garnishee shall serve an answer, to-

gether with answers to any interrogatories served with the complaint, within 21  days after  service of   process upon the garnishee. Interrogatories to the garnishee may be  served with the complaint without leave of  court. If the garnishee refuses or neglects to answer on oath as to the debts, credits, or ef- fects of  the defendant in the garnishee’s hands, or any inter- rogatories concerning such debts, credits, and effects that may be  propounded by the plaintiff, the court may award compul- sory process against the garnishee. If the garnishee admits any debts, credits, or effects, they shall be  held in the garnish- ee’s hands or paid into the registry of  the court, and shall be held in either case subject to the further order of  the court.

(b)  By Defendant. The defendant shall serve an answer within

30  days after  process has been executed, whether by attach- ment of  property or service on the garnishee.

(As  added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 29, 1985, eff. Aug. 1,  1985;  Mar. 2,  1987,  eff. Aug. 1,  1987;  Apr. 17,  2000,  eff. Dec.

1, 2000; Apr. 25, 2005, eff. Dec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule C. In  Rem Actions: Special Provisions

(1) WHEN AVAILABLE. An  action in rem may be  brought: (a) To  enforce any maritime lien;

(b)  Whenever a statute of  the United States provides for a

maritime action in rem or a proceeding analogous thereto. Except as otherwise provided by law a party  who may proceed

in  rem  may  also,  or  in  the  alternative,  proceed in  personam against any person who may be  liable.

Statutory provisions exempting vessels or other property owned

or possessed by or operated by or for the United States from arrest

Rule C                      FEDERAL RULES OF  CIVIL PROCEDURE

136

or seizure are not affected by this rule. When a statute  so   pro- vides, an action against the United States or an instrumentality thereof may proceed on in rem principles.

(2) COMPLAINT. In an action in rem the complaint must:

(a) be  verified;

(b)  describe with reasonable particularity  the property that

is the subject of  the action; and

(c)  state that  the property is within the district or will be

within the district while the action is pending. (3) JUDICIAL  AUTHORIZATION  AND PROCESS.

(a) Arrest Warrant.

(i)   The court must review the complaint and any sup-

porting papers. If the conditions for an in rem action ap- pear to exist, the court must issue an order directing the clerk to issue a warrant for the arrest  of   the  vessel or other property that is the subject of  the action.

(ii) If the plaintiff or the plaintiff’s attorney  certifies

that exigent circumstances make court review impractica- ble, the clerk must promptly issue a summons and a war- rant for the arrest of  the vessel or other property that  is the subject of  the action. The plaintiff has the burden in any post-arrest hearing under Rule E(4)(f) to show that ex- igent circumstances existed.

(b)  Service.

(i)  If the property that  is the subject of  the action is a

vessel or tangible property on board a vessel, the warrant and any supplemental  process must  be   delivered to the marshal for service.

(ii) If the property that  is the subject of  the action is

other  property, tangible or intangible, the  warrant  and any supplemental process must be  delivered to a person or organization authorized to enforce it, who may be:   (A)   a marshal;  (B)    someone under  contract  with  the  United States; (C)  someone specially appointed by the court for that  purpose; or, (D)  in an action brought by the United States, any officer or employee of  the United States.

(c)  Deposit in Court. If the property that is the subject of  the

action consists in whole or in part of  freight, the proceeds of property sold, or other intangible property, the clerk must issue—in addition to the warrant—a summons directing any person controlling the property to show cause why it should not be  deposited in court to abide the judgment.

(d)   Supplemental  Process. The clerk  may upon application

issue supplemental process to enforce the court’s order with- out further court order.

(4) NOTICE. No  notice other than execution of  process is required

when the property that  is the subject of  the action has been re- leased under Rule E(5). If the property is not released within 14 days after execution, the plaintiff must promptly—or within the time that the court allows—give public notice  of  the action and arrest  in a newspaper designated by court order and having gen- eral circulation in the district, but publication may be  terminated if the property is released before publication is completed. The no- tice must specify the time under Rule C(6)  to file a statement  of interest  in or right  against the seized property and to answer.

137

FEDERAL RULES OF  CIVIL PROCEDURE

Rule D

This rule does not affect the notice requirements in an action to foreclose a preferred ship mortgage under 46 U.S.C. §§ 31301 et seq., as amended.

(5)  ANCILLARY PROCESS. In any action  in rem in which process

has been served as provided by this rule, if any part of  the prop- erty that is the subject of  the action has not been brought within the control of  the court because it has been removed or sold, or because it is intangible property in the hands of  a person who has not been served with process, the court may, on motion, order any person having possession or control  of  such property or its pro- ceeds to show cause why it should not be  delivered into the cus- tody of  the marshal or other person or organization having a war- rant for the arrest of  the property, or paid into court to abide the judgment; and, after hearing, the court may enter such judgment as law and justice may require.

(6) RESPONSIVE PLEADING; INTERROGATORIES.

(a) Statement of  Interest; Answer. In an action in rem:

(i)  a person who asserts a right of  possession or any own-

ership interest in the property that  is the subject of  the action must file a verified statement  of  right or interest: (A)  within 14 days after the execution of  process, or

(B)  within the time that the court allows;

(ii) the statement of  right or interest must describe the

interest in the property that  supports the person’s demand for its restitution or right to defend the action;

(iii) an agent, bailee, or attorney must state the author-

ity to file a statement of  right or interest on behalf of  an- other; and

(iv) a person who asserts  a right  of   possession or any

ownership interest  must serve an answer within 21  days after filing the statement of  interest or right.

(b)   Interrogatories.  Interrogatories  may be   served with the

complaint in an in rem action without leave of  court. Answers to the interrogatories must be  served with the answer to the complaint.

(As  added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 29, 1985, eff. Aug. 1,  1985;  Mar. 2,  1987,  eff. Aug. 1,  1987;  Apr. 30,  1991,  eff. Dec.

1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25,  2005,  eff. Dec. 1,  2005;  Apr. 12,  2006,  eff. Dec. 1,  2006;  Apr.

23, 2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule D. Possessory, Petitory, and Partition Actions

In all actions for possession, partition,  and to try  title  main- tainable according to the course of  the admiralty practice with re- spect to a vessel, in all actions so  maintainable with respect to the possession of  cargo or other maritime property, and in all ac- tions by one or more part owners against the others to obtain se- curity for the return of  the vessel from any voyage undertaken without their consent, or by one or more part owners against the others to obtain possession of  the vessel for any voyage on giving security for its safe return, the process shall be  by a warrant  of arrest of  the vessel, cargo, or other property, and by notice in the manner provided by Rule B(2)  to the adverse party or parties.

(As  added Feb. 28, 1966, eff. July 1, 1966.)

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

(1)  APPLICABILITY. Except as otherwise provided, this  rule ap- plies to actions in personam with process of  maritime attachment and garnishment,  actions  in rem, and petitory,  possessory, and partition actions, supplementing Rules B,  C, and D.

(2) COMPLAINT; SECURITY.

(a) Complaint. In actions  to which this  rule is applicable the

complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be  able, without moving for a more definite statement, to commence an investigation of  the facts and to frame a respon- sive pleading.

(b)  Security for  Costs. Subject to the provisions of  Rule 54(d)

and of  relevant statutes,  the court may, on the filing of  the complaint or on the appearance of  any defendant, claimant, or any other party, or at any later time, require the plaintiff, de- fendant, claimant, or other party  to give security, or addi- tional security, in such sum as the court shall direct to pay all costs and expenses that  shall be  awarded against the party by any interlocutory order or by the final judgment, or on ap- peal by any appellate court.

(3) PROCESS.

(a) In admiralty and maritime proceedings process in rem or

of  maritime attachment  and garnishment may be  served only within the district.

(b)  Issuance and Delivery. Issuance and delivery of  process in

rem, or of   maritime  attachment  and garnishment, shall be held in abeyance if the plaintiff so  requests.

(4)   EXECUTION  OF   PROCESS;  MARSHAL’S    RETURN;  CUSTODY  OF

PROPERTY; PROCEDURES FOR RELEASE.

(a) In General. Upon issuance  and delivery of  the process, or,

in the case of  summons with process of  attachment  and gar- nishment, when it appears that the defendant cannot be  found within the district,  the marshal or other person or organiza- tion having a warrant shall forthwith execute the process in accordance with this subdivision (4),  making due and prompt return.

(b)  Tangible Property. If tangible  property  is to be  attached

or arrested, the marshal or other person or organization hav- ing the warrant shall take it into the marshal’s possession for safe custody. If the character or situation  of  the property is such that the taking of  actual possession is impracticable, the marshal or other person executing the process shall affix a copy thereof to the property in a conspicuous place and leave a copy of  the complaint and process with the person having possession or the person’s agent. In furtherance  of  the mar- shal’s custody of  any vessel the marshal is authorized to make a written request to the collector of   customs not to grant clearance to such vessel until notified by the marshal or dep- uty marshal or by the clerk that  the vessel has been released in accordance with these rules.

(c)   Intangible Property. If intangible  property  is to  be   at-

tached or arrested the marshal or other person or organization having the warrant shall execute the process by leaving with

139

FEDERAL RULES OF  CIVIL PROCEDURE

Rule E

the  garnishee or other  obligor a copy of  the complaint and process requiring the garnishee or other obligor to answer as provided in Rules B(3)(a) and C(6);  or the marshal may accept for payment into the registry of  the court the amount owed to the extent of  the amount claimed by the plaintiff with inter- est and costs, in which event the garnishee or other obligor shall not be  required to answer unless alias process shall be served.

(d)  Directions With  Respect to  Property in Custody. The mar-

shal or other person or organization having the warrant may at any time apply to the court for directions with respect to property that has been attached or arrested, and shall give no- tice of   such application to any or all of   the parties as the court may direct.

(e)   Expenses of  Seizing and Keeping Property; Deposit. These

rules do  not alter the provisions of  Title 28,  U.S.C., § 1921,  as amended, relative to the expenses of  seizing and keeping prop- erty attached or arrested and to the requirement of  deposits to cover such expenses.

(f)  Procedure for  Release From Arrest or  Attachment. Whenever

property is arrested or attached, any person claiming an inter- est in it shall be   entitled to a prompt hearing at which the plaintiff shall be  required to show why the arrest or attach- ment should not be  vacated or other relief granted consistent with these rules. This subdivision shall have no application to suits for seamen’s wages when process is issued upon a certifi- cation of   sufficient cause filed pursuant  to  Title  46,  U.S.C.

§§ 603 and 604 2 or to actions by the United States for forfeitures for violation of  any statute of  the United States.

(5) RELEASE OF PROPERTY.

(a) Special Bond. Whenever process of  maritime attachment

and garnishment or process in rem is issued the execution of such process shall be  stayed, or the property released, on the giving of  security, to be  approved by the court or clerk, or by stipulation of  the parties, conditioned to answer the judgment of  the court or of  any appellate court. The parties may stipu- late the amount and nature of  such security. In the event of the inability or refusal of  the parties so  to stipulate the court shall fix the principal sum of  the bond or stipulation at an amount sufficient to cover the amount of  the plaintiff’s claim fairly stated with accrued interest and costs; but the principal sum shall in no event exceed (i)  twice the amount of  the plain- tiff’s claim or (ii) the value of  the property on due appraise- ment, whichever is smaller. The bond or stipulation  shall be conditioned for the payment of  the principal sum and interest thereon at 6 per cent per annum.

(b)  General Bond. The owner of  any vessel may file a general

bond or stipulation, with sufficient surety, to be  approved by the court, conditioned to answer the judgment of  such court in all or any actions that  may be  brought thereafter in such court in which the vessel is attached or arrested. Thereupon the execution of  all such process against such vessel shall be

2 Repealed by Pub. L. 98–89,  § 4(b), Aug. 26,  1983,  97 Stat. 600,  section 1 of  which enacted  Title  46, Shipping.

stayed so  long as the amount secured by such bond or stipula- tion is at least double the aggregate amount claimed by plain- tiffs in all actions begun and pending in which such vessel has been attached  or arrested.  Judgments  and remedies may be had on such bond or stipulation  as if a special bond or stipula- tion had been filed in each of  such actions. The district court may make necessary orders to carry this rule into effect, par- ticularly  as  to  the  giving of   proper  notice  of   any  action against or attachment of  a vessel for which a general bond has been filed. Such bond or stipulation  shall be  indorsed by the clerk  with a  minute  of   the  actions  wherein process is  so stayed. Further security may be  required by the court at any time.

If a special bond or stipulation is given in a particular  case, the liability on the general bond or stipulation shall cease as to that case.

(c)  Release by  Consent or  Stipulation;  Order of  Court or  Clerk; Costs. Any vessel, cargo, or other  property  in the custody of the marshal or other person or organization having the war- rant may be  released forthwith upon the marshal’s acceptance and approval of  a stipulation, bond, or other security, signed by the party on whose behalf the property is detained or the party’s attorney  and expressly authorizing such release, if all costs and charges of  the court and its officers shall have first been paid. Otherwise no property in the custody of  the mar- shal,  other  person or  organization  having the  warrant,  or other officer of  the court shall be  released without an order of the court; but such order may be  entered as of  course by the clerk, upon the giving of  approved security as provided by law and these rules, or upon the dismissal or discontinuance of  the action; but the marshal or other person or organization having the warrant shall not deliver any property so   released until the costs and charges of  the officers of  the court shall first have been paid.

(d)   Possessory, Petitory, and Partition Actions. The foregoing provisions of  this subdivision (5) do  not apply to petitory, pos- sessory, and partition actions. In such cases the property ar- rested shall be   released only by order of  the court, on such terms and conditions and on the giving of  such security as the court may require.

(6) REDUCTION OR  IMPAIRMENT OF SECURITY. Whenever security is taken  the  court  may,  on motion  and  hearing,  for good cause shown, reduce the  amount  of   security given; and if the surety shall be  or become insufficient, new or additional sureties may be required on motion and hearing.

(7) SECURITY ON  COUNTERCLAIM.

(a) When a person who has given security for damages in the original action asserts a counterclaim that  arises from the transaction or occurrence that  is the subject of  the original action,  a  plaintiff  for whose benefit  the  security  has  been given must give security  for damages demanded in the coun- terclaim unless the court, for cause shown, directs otherwise. Proceedings on the original claim must be  stayed until this se- curity is given, unless the court directs otherwise.

(b)   The plaintiff  is  required to  give security  under Rule E(7)(a) when the United States or its corporate instrumental- ity counterclaims and would have been required to give secu- rity to respond in damages if a private party but is relieved by law from giving security.

(8) RESTRICTED APPEARANCE. An  appearance to defend against an

admiralty and maritime claim with respect to which there has is- sued process in rem, or process of  attachment  and garnishment, may be  expressly restricted to the defense of  such claim, and in that  event is not an appearance for the  purposes of   any other claim with respect to which such process is not available or has not been served.

(9) DISPOSITION OF PROPERTY; SALES.

(a) Interlocutory Sales; Delivery.

(i)  On  application of  a party, the marshal, or other per-

son having custody of  the property, the court may order all or part of  the property sold—with the sales proceeds, or as much of  them as will satisfy the judgment, paid into court to await further orders of  the court—if:

(A)   the attached or arrested property is perishable,

or liable to deterioration, decay, or injury by being de- tained in custody pending the action;

(B)  the expense of  keeping the property is excessive

or disproportionate; or

(C)  there is an unreasonable delay in securing release

of  the property.

(ii) In the circumstances described in Rule E(9)(a)(i), the

court, on motion by a defendant or a person filing a state- ment of  interest or right under Rule C(6),  may order that the property, rather  than being sold, be   delivered to the movant upon giving security under these rules.

(b)  Sales, Proceeds. All sales of  property shall be  made by the

marshal or a deputy marshal, or by other person or organiza- tion having the warrant, or by any other person assigned by the court where the marshal or other person or organization having the warrant is a party in interest; and the proceeds of sale shall be  forthwith paid into the registry of  the court to be  disposed of  according to law.

(10) PRESERVATION OF PROPERTY. When the owner or another per-

son remains in possession of  property attached or arrested under the provisions of   Rule E(4)(b) that  permit  execution of   process without taking actual possession, the court, on a party’s motion or on its own, may enter any order necessary to preserve the prop- erty and to prevent its removal.

(As  added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 29, 1985, eff. Aug. 1,  1985;  Mar. 2,  1987,  eff. Aug. 1,  1987;  Apr. 30,  1991,  eff. Dec.

1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006.)

Rule F. Limitation of Liability

(1)  TIME  FOR  FILING  COMPLAINT; SECURITY. Not later  than  six months after receipt of  a claim in writing, any vessel owner may file a complaint in the appropriate district court, as provided in subdivision (9)  of  this rule, for limitation of  liability pursuant to statute. The owner (a) shall deposit with the court, for the benefit

Rule F                      FEDERAL RULES OF  CIVIL PROCEDURE

142

of  claimants, a sum equal to the amount or value of  the owner’s interest  in the vessel and pending freight, or approved security therefor, and in addition such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of  the statutes as amended; or (b)  at the owner’s op- tion shall transfer to a trustee to be  appointed by the court, for the benefit of  claimants, the owner’s interest  in the vessel and pending freight, together with such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of  the statutes as amended. The plaintiff shall also give security for costs and, if the plaintiff elects to give security, for interest at the rate of  6 percent per annum from the date of  the security.

(2)  COMPLAINT. The complaint  shall  set  forth  the  facts  on the

basis of  which the right to limit liability is asserted and all facts necessary to enable the court to determine the amount to which the owner’s liability  shall be  limited. The complaint may demand

exoneration from as well as limitation  of  liability. It shall state the  voyage if any, on which the  demands sought to be   limited arose, with the date and place of  its termination; the amount of all demands including all unsatisfied liens or claims of  lien, in contract or in tort or otherwise, arising on that voyage, so  far as known to the plaintiff, and what actions and proceedings, if any, are  pending thereon; whether the  vessel was damaged, lost,  or abandoned, and, if so, when and where; the value of  the vessel at the  close of   the  voyage or, in case of   wreck, the  value of   her wreckage, strippings, or proceeds, if any, and where and in whose possession they are; and the amount of  any pending freight recov- ered or recoverable. If the plaintiff elects to transfer the plain- tiff’s interest in the vessel to a trustee, the complaint must fur- ther show any prior paramount liens thereon, and what voyages or trips, if any, she has made since the voyage or trip on which the claims sought to be  limited arose, and any existing liens arising upon any such subsequent voyage or trip, with the amounts and causes thereof, and the names and addresses of  the lienors, so  far as known; and whether the vessel sustained any injury upon or by reason of  such subsequent voyage or trip.

(3)  CLAIMS AGAINST OWNER; INJUNCTION. Upon compliance  by the

owner with the  requirements of   subdivision (1)  of   this rule all claims and proceedings against the owner or the owner’s property with respect to the matter in question shall cease. On  application of  the plaintiff the court shall enjoin the further prosecution of any action or proceeding against the plaintiff or the plaintiff’s property with respect to any claim subject to limitation in the ac- tion.

(4) NOTICE TO  CLAIMANTS. Upon the owner’s compliance with sub-

division (1) of  this rule the court shall issue a notice to all persons asserting claims with respect to which the complaint seeks limi- tation, admonishing them to file their respective claims with the clerk of  the court and to serve on the attorneys for the plaintiff a copy thereof on or before a date to be  named in the notice. The date so  fixed shall not be  less than 30 days after issuance of  the notice. For cause shown, the court may enlarge the time within which claims may be  filed. The notice shall be  published in such newspaper or newspapers as the court may direct once a week for

four successive weeks prior  to  the  date  fixed for the  filing of claims. The plaintiff not later than the day of  second publication shall also mail a copy of  the notice to every person known to have made any claim against the vessel or the plaintiff arising out of the voyage or trip on which the claims sought to be  limited arose. In cases involving death a copy of  such notice shall be  mailed to the decedent at the decedent’s last known address, and also to any person who shall be  known to have made any claim on account of such death.

(5)  CLAIMS AND ANSWER. Claims shall  be  filed and served on or

before the date specified in the notice provided for in subdivision (4)  of  this rule. Each claim shall specify the facts upon which the claimant relies in support of  the claim, the items thereof, and the dates on which the same accrued. If a claimant desires to contest either the right to exoneration from or the right to limitation of liability the claimant shall file and serve an answer to the com- plaint unless the claim has included an answer.

(6)  INFORMATION  TO  BE  GIVEN  CLAIMANTS. Within  30  days after

the date specified in the notice for filing claims, or within such time as the court thereafter may allow, the plaintiff shall mail to the attorney for each claimant (or if the claimant has no attorney to the claimant) a list setting forth (a) the name of  each claimant, (b)  the name and address of  the claimant’s attorney (if  the claim- ant is known to have one), (c)  the nature of  the claim, i.e., wheth- er property loss, property damage, death, personal injury etc., and (d)  the amount thereof.

(7)  INSUFFICIENCY  OF  FUND  OR   SECURITY. Any claimant  may by

motion demand that  the funds deposited in court or the security given by the plaintiff be   increased on the ground that  they are less than  the value of   the plaintiff’s interest  in the vessel and pending freight.  Thereupon the  court  shall  cause due appraise- ment to be  made of  the value of  the plaintiff’s interest in the ves- sel and pending freight; and if the court finds that  the deposit or security is either insufficient or excessive it  shall order its in- crease or reduction. In like manner any claimant  may demand that the deposit or security be  increased on the ground that it is insufficient to carry out the provisions of  the statutes relating to claims in respect of  loss of  life or bodily injury; and, after notice and hearing, the court may similarly order that the deposit or se- curity be  increased or reduced.

(8) OBJECTIONS TO  CLAIMS: DISTRIBUTION OF FUND. Any interested

party may question or controvert any claim without filing an ob- jection thereto.  Upon determination  of  liability  the fund depos- ited or secured, or the proceeds of  the vessel and pending freight, shall be  divided pro rata, subject to all relevant provisions of  law, among the several claimants in proportion to the amounts of  their respective claims, duly proved, saving, however, to all parties any priority to which they may be  legally entitled.

(9)  VENUE; TRANSFER. The complaint  shall  be   filed in any dis-

trict  in which the vessel has been attached or arrested to answer for any claim with respect to which the plaintiff seeks to limit li- ability; or, if the vessel has not been attached or arrested, then in any district in which the owner has been sued with respect to any such claim. When the vessel has not been attached or arrested to answer the matters  aforesaid, and suit has not been commenced

against the owner, the proceedings may be  had in the district in which the vessel may be, but if the vessel is not within any dis- trict  and no suit has been commenced in any district, then the complaint may be   filed in any district.  For the  convenience of parties and witnesses, in the interest  of  justice, the court may transfer the action to any district;  if venue is wrongly laid the court shall dismiss or, if it be  in the interest of  justice, transfer the action to any district in which it could have been brought. If the vessel shall have been sold, the proceeds shall represent the vessel for the purposes of  these rules.

(As  added Feb. 28, 1966, eff. July 1,  1966; amended Mar. 2,  1987, eff. Aug. 1, 1987.)

Rule G. Forfeiture Actions In  Rem

(1)  SCOPE. This rule governs a forfeiture action in rem arising from a federal statute.  To   the extent that  this rule does not ad- dress an issue, Supplemental Rules C and E and the Federal Rules of  Civil Procedure also apply.

(2) COMPLAINT. The complaint must:

(a) be  verified;

(b)  state the grounds for subject-matter jurisdiction, in rem

jurisdiction over the defendant property, and venue;

(c)  describe the property with reasonable particularity;

(d)  if the property is tangible, state  its location when any

seizure occurred and—if different—its location  when the  ac- tion is filed;

(e)  identify the statute  under which the forfeiture action is

brought; and

(f)  state sufficiently detailed facts to support a reasonable

belief that  the government will be  able to meet its burden of proof at trial.

(3) JUDICIAL  AUTHORIZATION  AND PROCESS.

(a) Real Property. If the defendant is real property, the gov-

ernment must proceed under 18 U.S.C. § 985.

(b)  Other Property; Arrest Warrant. If the defendant is not real

property:

(i)  the clerk must issue a warrant to arrest the property

if it is in the government’s possession, custody, or control; (ii) the  court—on finding probable cause—must issue a

warrant to arrest the property if it is not in the govern- ment’s possession, custody, or control and is not subject to a judicial restraining order; and

(iii) a warrant is not necessary if the property is subject

to a judicial restraining order. (c)  Execution of  Process.

(i)   The warrant  and any supplemental process must be

delivered to a person or organization authorized to execute it, who may be:  (A)  a marshal or any other United States officer or employee; (B)   someone under contact  with the United States; or (C)  someone specially appointed by the court for that purpose.

(ii) The authorized person or organization must execute

the warrant and any supplemental process on property in the United States as soon as practicable unless:

(A)   the property is in the government’s possession, custody, or control; or

(B)  the court orders a different time when the com- plaint is under seal, the action is stayed before the warrant and supplemental process are executed, or the court finds other good cause.

(iii) The warrant  and any supplemental process may be executed within the district  or, when authorized by stat- ute, outside the district.

(iv) If executing a  warrant on property outside the United States is required, the warrant may be  transmitted to an appropriate authority  for serving process where the property is located.

(4) NOTICE.

(a) Notice by  Publication.

(i)  When Publication  Is Required. A  judgment of  forfeit- ure may be  entered only if the government has published notice of  the action within a reasonable time after filing the complaint or at a time the court orders. But notice need not be  published if:

(A)  the defendant property is worth less than $1,000 and direct  notice  is sent  under  Rule G(4)(b) to every person the government can reasonably identify as a po- tential claimant; or

(B)   the court finds that  the cost of  publication  ex- ceeds the property’s value and that other means of  no- tice would satisfy due process.

(ii) Content of  the Notice. Unless the court orders other- wise, the notice must:

(A)  describe the property with reasonable particular- ity;

(B)   state  the times under Rule G(5)   to file a claim and to answer; and

(C)  name the government attorney to be  served with the claim and answer.

(iii) Frequency of  Publication. Published notice must ap- pear:

(A)  once a week for three consecutive weeks; or

(B)  only once if, before the action was filed, notice of nonjudicial forfeiture of  the  same property  was pub- lished on an  official internet  government forfeiture site for at least 30 consecutive days, or in a newspaper of  general circulation for three consecutive weeks in a district  where publication is authorized under Rule G(4)(a)(iv).

(iv) Means of  Publication. The government should select from the following options a means of  publication reason- ably calculated to notify potential claimants of  the action: (A)  if the property  is in the United States,  publica-

tion in a newspaper generally circulated in the district where the  action  is  filed,  where the  property  was seized, or where property  that  was not  seized is lo- cated;

(B)  if the property is outside the United States, pub- lication in a newspaper generally circulated in a dis- trict  where the action is filed, in a newspaper gener- ally circulated in the country where the property is lo- cated, or in legal notices published and generally cir- culated in the country where the property is located; or

(C)  instead of  (A)  or (B), posting a notice on an offi-

cial internet government forfeiture site for at least 30 consecutive days.

(b)  Notice to  Known Potential Claimants.

(i)   Direct Notice Required. The government must  send

notice of  the action and a copy of  the complaint to any person who reasonably appears to be  a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).

(ii) Content of  the Notice. The notice must state:

(A)  the date when the notice is sent;

(B)  a deadline for filing a claim, at least 35 days after

the notice is sent;

(C)  that  an answer or a motion under Rule 12 must

be  filed no later than 21 days after filing the claim; and

(D)    the  name of   the  government attorney  to  be

served with the claim and answer. (iii) Sending Notice.

(A)  The notice must be  sent by means reasonably cal-

culated to reach the potential claimant.

(B)  Notice may be  sent to the potential claimant or

to the attorney  representing the potential claimant with respect to the seizure of  the property or in a re- lated investigation, administrative forfeiture proceed- ing, or criminal case.

(C)  Notice sent to a potential claimant who is incar-

cerated must be  sent to the place of  incarceration.

(D)  Notice to a person arrested in connection with an

offense giving rise to the forfeiture who is not incar- cerated when notice is sent may be  sent to the address that person last gave to the agency that arrested or re- leased the person.

(E)   Notice to a person from whom the property was

seized who is not incarcerated when notice is sent may be   sent to the last address that  person gave to the agency that seized the property.

(iv) When Notice Is Sent. Notice by the following means

is sent on the date when it is placed in the mail, delivered to a commercial carrier, or sent by electronic mail.

(v)  Actual Notice. A  potential claimant who had actual

notice of  a forfeiture action may not oppose or seek relief from forfeiture because of  the government’s failure to send the required notice.

(5) RESPONSIVE PLEADINGS.

(a) Filing a Claim.

(i)   A  person who asserts  an interest  in the  defendant

property may contest the forfeiture by filing a claim in the court where the action is pending. The claim must:

(A)  identify the specific property claimed;

(B)  identify the claimant and state the claimant’s in- terest in the property;

(C)  be  signed by the claimant under penalty of  per- jury; and

(D)  be  served on the government attorney designated under Rule G(4)(a)(ii)(C) or (b)(ii)(D).

(ii) Unless the court for good cause sets a different time, the claim must be  filed:

(A)  by the time stated in a direct notice sent under

Rule  G(4)(b);

(B)  if notice was published but direct notice was not sent to the claimant or the claimant’s attorney,  no later than 30 days after final publication of  newspaper notice  or legal notice  under Rule G(4)(a) or no later than 60 days after the first day of  publication on an of- ficial internet government forfeiture site; or

(C)  if notice was not published and direct notice was not sent to the claimant or the claimant’s attorney:

(1)  if the property was in the government’s pos- session, custody, or control  when the  complaint was filed, no later than 60 days after the filing, not counting any time when the complaint was under seal or when the  action  was stayed before execu- tion of  a warrant issued under Rule G(3)(b); or

(2)  if the property was not in the government’s possession, custody, or control when the complaint was filed, no later  than  60  days after the govern- ment  complied with  18  U.S.C.  § 985(c)   as to  real property, or 60 days after process was executed on the property under Rule G(3).

(iii) A  claim filed by a person asserting an interest as a bailee must identify the bailor, and if filed on the bailor’s behalf must state the authority to do  so.

(b)  Answer. A  claimant must serve and file an answer to the complaint or a motion under Rule 12 within 21 days after filing the claim. A  claimant waives an objection to in rem jurisdic- tion or to venue if the objection is not made by motion or stated in the answer.

(6) SPECIAL INTERROGATORIES.

(a) Time and Scope. The government may serve special inter- rogatories limited to the claimant’s identity and relationship to the defendant property without the court’s leave at  any time after the claim is filed and before discovery is closed. But if the claimant serves a motion to dismiss the action, the gov- ernment must serve the interrogatories within 21  days after the motion is served.

(b)  Answers or  Objections. Answers or objections  to these in- terrogatories must be  served within 21 days after the interrog- atories are served.

(c)  Government’s Response Deferred. The government need not respond to a claimant’s motion to dismiss the action under Rule  G(8)(b) until  21  days after  the  claimant  has answered these interrogatories.

(7)  PRESERVING,  PREVENTING  CRIMINAL USE,  AND  DISPOSING  OF

PROPERTY; SALES.

(a) Preserving and Preventing Criminal Use  of  Property. When

the government does not have actual possession of  the defend- ant property the court, on motion or on its own, may enter any order necessary to preserve the property, to prevent its re- moval or encumbrance, or to prevent its use in a criminal of- fense.

(b)  Interlocutory Sale or Delivery.

(i)  Order to Sell. On  motion by a party  or a person hav-

ing custody of  the property, the court may order all or part of  the property sold if:

(A)  the property is perishable or at risk of  deteriora-

tion,  decay, or injury  by being detained  in  custody pending the action;

(B)  the expense of  keeping the  property  is excessive

or is disproportionate to its fair market value;

(C)  the property is subject to a mortgage or to taxes

on which the owner is in default; or

(D)  the court finds other good cause.

(ii)  Who Makes the  Sale.  A   sale must  be   made by a

United States agency that has authority to sell the prop- erty,  by the  agency’s contractor,  or by any person the court designates.

(iii) Sale Procedures. The sale is governed by 28  U.S.C.

§§ 2001,  2002,  and 2004,  unless all parties, with the court’s

approval, agree to the sale, aspects of  the sale, or different procedures.

(iv) Sale Proceeds. Sale proceeds are  a substitute  res

subject to forfeiture in place of  the property that was sold. The proceeds must be  held in an interest-bearing account maintained by the United States pending the conclusion of the forfeiture action.

(v)   Delivery on a  Claimant’s Motion. The court  may

order that the property be  delivered to the claimant pend- ing the conclusion of  the action if the claimant shows cir- cumstances that  would permit sale under Rule G(7)(b)(i) and gives security under these rules.

(c)  Disposing of  Forfeited Property. Upon entry  of  a forfeiture

judgment, the property or proceeds from selling the property must be  disposed of  as provided by law.

(8) MOTIONS.

(a) Motion To  Suppress Use  of  the Property as  Evidence. If the

defendant property was seized, a party with standing to con- test the lawfulness of  the seizure may move to suppress use of the property as evidence. Suppression does not affect forfeit- ure of  the property based on independently derived evidence.

(b)  Motion To  Dismiss the Action.

(i)   A  claimant who establishes standing to contest for-

feiture may move to dismiss the action under Rule 12(b). (ii) In an action governed by 18  U.S.C. § 983(a)(3)(D) the complaint may not be   dismissed on the  ground that  the government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property. The sufficiency of  the complaint  is governed

by Rule G(2).

(c)  Motion To  Strike a Claim or Answer.

(i)  At any time before trial,  the government may move to strike a claim or answer:

(A)  for failing to comply with Rule G(5)  or (6),  or

(B)  because the claimant lacks standing. (ii) The motion:

(A)  must be  decided before any motion by the claim- ant to dismiss the action; and

(B)   may be   presented as a motion for judgment on the pleadings or as a motion to determine after a hear- ing or by summary judgment whether the claimant can carry the burden of  establishing standing by a prepon- derance of  the evidence.

(d)  Petition To  Release Property.

(i)  If a United States  agency or an agency’s contractor holds property for judicial or nonjudicial forfeiture under a statute  governed by 18 U.S.C. § 983(f),  a person who has filed a claim to the property may petition for its release under § 983(f).

(ii) If a petition  for release is filed before a judicial for- feiture action is filed against the property, the petition may be  filed either in the district where the property was seized or in the district where a warrant to seize the prop- erty issued. If a judicial forfeiture action against the prop- erty is later filed in another district—or if the government shows that the action will be  filed in another district—the petition may be  transferred to that district under 28 U.S.C.

§ 1404.

(e)  Excessive Fines. A  claimant may seek to mitigate a for- feiture under the Excessive Fines Clause of  the Eighth Amend- ment  by motion for summary judgment or by motion made after entry of  a forfeiture judgment if:

(i)   the claimant  has pleaded the defense under Rule 8;

and

(ii) the parties have had the opportunity to conduct civil discovery on the defense.

(9)  TRIAL. Trial is to the court unless any party demands trial by jury under Rule 38.

(As  added Apr. 12, 2006, eff. Dec. 1, 2006; amended Mar. 26, 2009, eff. Dec. 1, 2009.)

Æ

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