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are transcribed in your approved Rules Supplement.
These
rules govern the procedure in the United States district courts in all suits of
a civil nature whether cognizable as cases at law or in equity or in admiralty,
with the exceptions stated in Rule 81. They shall be construed and
administered to secure the just, speedy, and inexpensive determination of every
action.
There
shall be one form of action to be known as “civil action.”
A civil action is commenced by filing a complaint
with the court.
(a) Form. The summons shall be signed by the clerk,
bear the seal of the court, identify the court and the parties, be directed to
the defendant, and state the name and address of the plaintiff’s attorney or, if unrepresented,
of the plaintiff. It shall also state the time within which the defendant must
appear and defend, and notify the defendant that failure to do so will result
in a judgment by default against the defendant for the relief demanded in the
complaint. The court may allow a summons to be amended.
(b)
Issuance. Upon or after filing the complaint, the plaintiff may present a
summons to the clerk for signature and seal. If the summons is in proper form,
the clerk shall sign, seal, and issue it to the plaintiff for service on the
defendant. A summons, or a copy of the summons if addressed to multiple
defendants, shall be issued for each defendant to be served.
(c) Service with Complaint;
by Whom Made.
(1) A summons shall be served together with a copy
of the complaint. The plaintiff is responsible for service of a summons and
complaint within the time allowed under subdivision (m) and shall furnish the
person effecting service with the necessary copies of the summons and
complaint.
(2) Service may be effected by any person who is not
a party and who is at least 18 years of age. At the request of the plaintiff,
however, the court may direct that service be effected by a United States
marshal, deputy United States marshal, or other person or officer specially appointed
by the court for the purpose. Such an appointment must be made when the
plaintiff is authorized to proceed in forma pauperis pursuant to 28 U.S.C. §
1915 or is authorized to proceed as a seaman under 28 U.S.C. § 1916.
(d)
Waiver of Service; Duty to Save Costs of Service; Request to Waive.
(1)
A defendant who waives service of a summons does not thereby waive any
objection to the venue or to the jurisdiction of the court over the person of
the defendant.
(2)
An individual, corporation, or association that is subject to service under
subdivision (e), (f), or (h) and that receives notice of an action in the
manner provided in this paragraph has a duty to avoid unnecessary costs of
serving the summons. To avoid costs, the plaintiff may notify such a defendant
of the commencement of the action and request that the defendant waive service
of a summons. The notice and request.
(A)
shall be in writing and shall be addressed directly to the defendant, if an
individual, or else to an officer or managing or general agent (or other agent
authorized by appointment or law to receive service of process) of a defendant
subject to service under subdivision (h);
(B)
shall be dispatched through first-class mail or other reliable means;
(C)
shall be accompanied by a copy of the complaint and shall identify the court in
which it has been filed;
(D)
shall inform the defendant, by means of a text prescribed in an official form
promulgated pursuant to Rule 84, of the consequences of compliance and of a failure
to comply with the request;
(E)
shall set forth the date on which request is sent;
(F)
shall allow the defendant a reasonable time to return the waiver, which shall
be at least 30 days from the date on which the request is sent, or 60 days from
that date if the defendant is addressed outside any judicial district of the
United States; and
(G)
shall provide the defendant with an extra copy of the notice and request, as
well as a prepaid means of compliance in writing.
If
a defendant located within the United States fails to comply with a request for
waiver made by a plaintiff located within the United States, the court shall
impose the costs subsequently incurred in effecting service on the defendant
unless good cause for the failure be shown.
(3)
A defendant that, before being served with process, timely returns a waiver so
requested is not required to serve an answer to the complaint until 60 days
after the date on which the request for waiver of service was sent, or days
after that date if the defendant was addressed outside any judicial district of
the United States.
(4)
When the plaintiff files a waiver of service with the court, the action shall
proceed, except as provided in paragraph (3), as if a summons and complaint had
been served at the time of filing the waiver, and no proofs of service shall be
required.
(5)
The costs to be imposed on a defendant under paragraph (2) for failure to
comply with a request to waive service of a summons shall include the costs
subsequently incurred in effecting service under subdivision (e), (f), or (h),
together with the costs, including a reasonable attorney’s fee, of any motion
required to collect the costs of service.
(e)
Service Upon Individuals Within a Judicial District of the United States.
Unless otherwise provided by federal law, service upon an individual from whom
a waiver has not been obtained and filed, other than an infant or an
incompetent person, may be effected in any judicial district of the United
States:
(1)
pursuant to the law of the state in which the district court is located, or in
which service is effected, for the service of a summons upon the defendant in
an action brought in the courts of general jurisdiction of the State; or
(2)
by delivering a copy of the summons and of the complaint to the individual
personally or by leaving copies thereof at the individual’s dwelling house or
usual place of abode with some person of suitable age and discretion then
residing therein or by delivering a copy of the summons and of the complaint to
an agent authorized by appointment or by law to receive service of process.
(f)
Service Upon Individuals in a Foreign Country. Unless otherwise provided by
federal law, service upon an individual from whom a waiver has not been
obtained and filed, other than an infant or an incompetent person, may be
effected in a place not within any judicial district of the United States:
(1)
by any internationally agreed means reasonably calculated to give notice, such
as those means authorized by the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents; or
(2)
if there is no internationally agreed means of service or the applicable
international agreement allows other means of service, provided that service is
reasonably calculated to give notice:
(A)
in the manner prescribed by the law of the foreign country for service in that
country in an action in any of its courts of general jurisdiction; or
(B)
as directed by the foreign authority in response to a letter rogatory or letter
of request; or
(C)
unless prohibited by the law of the foreign country, by
(i)
delivery to the individual personally of a copy of the summons and the
complaint; or
(ii)
any form of mail requiring a signed receipt, to be addressed and dispatched by
the clerk of the court to the party to be served; or
(3)
by other means not prohibited by international agreement as may be directed by
the court.
(g)
Service Upon Infants and Incompetent Person. Service upon an infant or an
incompetent person in a judicial district of the United States shall be
effected in the manner prescribed by the law of the state in which the service
is made for the service of summons or like process upon any such defendant in
an action brought in the courts of general jurisdiction of that state. Service
upon an infant or an incompetent person in a place not within any judicial
district of the United States shall be effected in the manner prescribed by
paragraph (2)(A) or (2)(B) of subdivision (f) or by such means as the court may
direct.
(h)
Service Upon Corporations and Associations. Unless otherwise provided by
federal law, service upon a domestic or foreign corporation or upon a
partnership or other unincorporated association that is subject to suit under a
common name, and from which a waiver of service has not been obtained and
filed, shall be effected:
(1)
in a judicial district of the United States in the manner prescribed for
individuals by subdivision (e)(1), or by delivering a copy of the summons and
of the complaint to an officer, a managing or general agent, or to any other
agent authorized by appointment or by law to receive service of process and, if
the agent is one authorized by statute to receive service and the statute so
requires, by also mailing a copy to the defendant, or
(2)
in a place not within any judicial district of the United States in any manner
prescribed for individuals by subdivision (f) except personal delivery as
provided in paragraph (2)(C)(i) thereof.
(i)
Service Upon the United States, and its Agencies, Corporations, or Officers.
(1)
Service upon the United States shall be effected
(A)
by delivering a copy of the summons and of the complaint to the United States
attorney for the district in which the action is brought or to an assistant
United States attorney or clerical employee designated by the United States
attorney in a writing filed with the clerk of the court or by sending a copy of
the summons and of the complaint by registered or certified mail addressed to
the civil process clerk at the office of the United States attorney and
(B)
by also sending a copy of the summons and of the complaint by registered or
certified mail to the Attorney General of the United States at Washington,
District of Columbia, and
(C)
in any action attacking the validity of an order of an officer or agency of the
United States not made a party, by also sending a copy of the summons and of
the complaint by registered or certified mail to the officer or agency.
(2)
Service upon an officer, agency, or corporation of the United States shall be effected
by serving the United States in the manner prescribed by paragraph (1) of this
subdivision and by also sending a copy of the summons and of the complaint by
registered or certified mail to the officer, agency, or corporation.
(3)
The court shall allow a reasonable time for service of process under this
subdivision for the purpose of curing the failure to serve multiple officers,
agencies, or corporations of the United States if the plaintiff has effected
service on either the United States attorney or the Attorney General of the
United States.
(j)
Service Upon Foreign, State, or Local Governments.
(1)
Service upon a foreign state or a political subdivision, agency, or
instrumentality thereof shall be effected pursuant to28 U.S.C. § 1608.
(2)
Service upon a state, municipal corporation, or other governmental organization
subject to suit, shall be effected by delivering a copy of the summons and of
the complaint to its chief executive officer or by serving the summons and
complaint in the manner prescribed by the law of that state for the service of
summons or other like process upon any such defendant.
(k) Territorial Limits of
Effective Service.
(1) Service of a summons or filing a waiver of
service is effective to establish jurisdiction over the person of a defendant
(A) who could be subjected to the jurisdiction of a
court of general jurisdiction in the state in which the district court is
located, or
(B) who is a party joined under Rule 14 or Rule 19
and is served at a place within a judicial district of the United States and
not more than 100 miles from the place from which the summons issues, or
(C) who is subject to the federal interpleader
jurisdiction under 28 U.S.C. § 1335, or
(D) when authorized by a statute of the United
States.
(2) If the exercise of
jurisdiction is consistent with the Constitution and laws of the United States,
serving a summons or filing a waiver of service is also effective, with respect
to claims arising under federal law, to establish personal jurisdiction over
the person of any defendant who is not subject to the jurisdiction of the
courts of general jurisdiction of any state.
(l)
Proof of Service. If service is not waived, the person effecting service shall
make proof thereof to the court. If service is made by a person other than a
United States marshal or deputy United States marshal, the person shall make
affidavit thereof. Proof of service in a place not within any judicial district
of the United States shall, if effected under paragraph (1) of subdivision (f),
be made pursuant to the applicable treaty or convention, and shall, if effected
under paragraph (2) or (3) thereof, include a receipt signed by the addressee
or other evidence of delivery to the addressee satisfactory to the court.
Failure to make proof of service does not affect the validity of the service.
The court may allow proof of service to be amended.
(m) Time Limit for Service.
If service of the summons and complaint is not made upon a defendant within
120 days after the filing of the complaint, the court, upon motion or
on its own initiative after notice to the plaintiff, shall dismiss the action
without prejudice as to that defendant or direct that service be effected
within a specified time; provided that if the plaintiff shows good cause for
the failure, the court shall extend the time for service for an appropriate
period. This subdivision does not apply to service in a foreign country
pursuant to subdivision (f) or (j)(1).
(n)
Seizure of Property; Service of Summons not Feasible.
(1)
If a statute of the United States so provides, the court may assert
jurisdiction over property. Notice to claimants of the property shall than be
sent in the manner provided by the statute or by service of a summons under
this rule.
(2) Upon a showing that personal jurisdiction over a defendant cannot, in the district where the action is brought, be obtained with reasonable efforts by service of summons in any manner authorized by this rule, the court may assert jurisdiction over any of the defendant’s assets found within the district by seizing the assets under the circumstances
(b) Issuance. Upon or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is in proper form, the clerk shall sign, seal, and issue it to the plaintiff for service on the defendant. A summons, or a copy of the summons if addressed to multiple defendants, shall be issued for each defendant to be served.
(c)
Service with Complaint; by Whom Made.
(1) A summons shall be served together with a copy
of the complaint. The plaintiff is responsible for service of a summons and
complaint within the time allowed under subdivision (m) and shall furnish the
person effecting service with the necessary copies of the summons and
complaint.
(2)
Service may be effected by any person who is not a party and who is at least 18
years of age. At the request of the plaintiff, however, the court may direct
that service be effected by a United States marshal, deputy United States
marshal, or other person or officer specially appointed by the court for the
purpose. Such an appointment must be made when the plaintiff is authorized to
proceed in forma pauperis pursuant to28 U.S.C. § 1915 or is authorized to
proceed as a seaman under28 U.S.C. § 1916.
(d) Waiver of Service; Duty
to Save Costs of Service; Request to Waive.
(1) A defendant who waives service of a summons does
not thereby waive any objection to the venue or to the jurisdiction of the
court over the person of the defendant.
(2)
An individual, corporation, or association that is subject to service under
subdivision (e), (f), or (h) and that receives notice of an action in the
manner provided in this paragraph has a duty to avoid unnecessary costs of
serving the summons. To avoid costs, the plaintiff may notify such a defendant
of the commencement of the action and request that the defendant waive service
of a summons. The notice and request.
(A)
shall be in writing and shall be addressed directly to the defendant, if an
individual, or else to an officer or managing or general agent (or other agent
authorized by appointment or law to receive service of process) of a defendant
subject to service under subdivision (h);
(B)
shall be dispatched through first-class mail or other reliable means;
(C)
shall be accompanied by a copy of the complaint and shall identify the court in
which it has been filed;
(D)
shall inform the defendant, by means of a text prescribed in an official form
promulgated pursuant to Rule 84, of the consequences of compliance and of a
failure to comply with the request;
(E)
shall set forth the date on which request is sent;
(F)
shall allow the defendant a reasonable time to return the waiver, which shall
be at least 30 days from the date on which the request is sent, or 60 days from
that date if the defendant is addressed outside any judicial district of the
United States; and
(G)
shall provide the defendant with an extra copy of the notice and request, as
well as a prepaid means of compliance in writing.
If
a defendant located within the United States fails to comply with a request for
waiver made by a plaintiff located within the United States, the court shall
impose the costs subsequently incurred in effecting service on the defendant
unless good cause for the failure be shown.
(3)
A defendant that, before being served with process, timely returns a waiver so
requested is not required to serve an answer to the complaint until 60 days
after the date on which the request for waiver of service was sent, or days
after that date if the defendant was addressed outside any judicial district of
the United States.
(4)
When the plaintiff files a waiver of service with the court, the action shall
proceed, except as provided in paragraph (3), as if a summons and complaint had
been served at the time of filing the waiver, and no proofs of service shall be
required.
(5)
The costs to be imposed on a defendant under paragraph (2) for failure to
comply with a request to waive service of a summons shall include the costs
subsequently incurred in effecting service under subdivision (e), (f), or (h),
together with the costs, including a reasonable attorney’s fee, of any motion
required to collect the costs of service.
(e) Service Upon Individuals
Within a Judicial District of the United States. Unless otherwise provided by
federal law, service upon an individual from whom a waiver has not been
obtained and filed, other than an infant or an incompetent person, may be
effected in any judicial district of the United States:
(1) pursuant to the law of
the state in which the district court is located, or in which service is
effected, for the service of a summons upon the defendant in an action brought
in the courts of general jurisdiction of the State; or
(2) [1] by delivering a copy of the summons and of
the complaint to the individual personally or [2] by leaving copies thereof at
the individual’s dwelling house or usual place of abode with some person of
suitable age and discretion then residing therein or [3] by delivering a copy
of the summons and of the complaint to an agent authorized by appointment or by
law to receive service of process.
[4](f) Service Upon
Individuals in a Foreign Country. Unless otherwise provided by federal law,
service upon an individual from whom a waiver has not been obtained and filed,
other than an infant or an incompetent person, may be effected in a place not
within any judicial district of the United States:
(1)
by any internationally agreed means reasonably calculated to give notice, such
as those means authorized by the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents; or
(2)
if there is no internationally agreed means of service or the applicable
international agreement allows other means of service, provided that service is
reasonably calculated to give notice:
(A)
in the manner prescribed by the law of the foreign country for service in that
country in an action in any of its courts of general jurisdiction; or
(B)
as directed by the foreign authority in response to a letter rogatory or letter
of request; or
(C)
unless prohibited by the law of the foreign country, by
(i)
delivery to the individual personally of a copy of the summons and the
complaint; or
(ii)
any form of mail requiring a signed receipt, to be addressed and dispatched by
the clerk of the court to the party to be served; or
(3) by other means not prohibited by international
agreement as may be directed by the court.
(g)
Service Upon Infants and Incompetent Person. Service upon an infant or an incompetent
person in a judicial district of the United States shall be effected in the
manner prescribed by the law of the state in which the service is made for the
service of summons or like process upon any such defendant in an action brought
in the courts of general jurisdiction of that state. Service upon an infant or
an incompetent person in a place not within any judicial district of the United
States shall be effected in the manner prescribed by paragraph (2)(A) or (2)(B)
of subdivision (f) or by such means as the court may direct.
(h)
Service Upon Corporations and Associations. Unless otherwise provided by
federal law, service upon a domestic or foreign corporation or upon a
partnership or other unincorporated association that is subject to suit under a
common name, and from which a waiver of service has not been obtained and
filed, shall be effected:
(1)
in a judicial district of the United States in the manner prescribed for
individuals by subdivision (e)(1), or by delivering a copy of the summons and
of the complaint to an officer, a managing or general agent, or to any other
agent authorized by appointment or by law to receive service of process and, if
the agent is one authorized by statute to receive service and the statute so
requires, by also mailing a copy to the defendant, or
(2)
in a place not within any judicial district of the United States in any manner
prescribed for individuals by subdivision (f) except personal delivery as
provided in paragraph (2)(C)(i) thereof.
(i)
Service Upon the United States, and its Agencies, Corporations, or Officers.
(1)
Service upon the United States shall be effected
(A)
by delivering a copy of the summons and of the complaint to the United States
attorney for the district in which the action is brought or to an assistant
United States attorney or clerical employee designated by the United States
attorney in a writing filed with the clerk of the court or by sending a copy of
the summons and of the complaint by registered or certified mail addressed to the
civil process clerk at the office of the United States attorney and
(B)
by also sending a copy of the summons and of the complaint by registered or
certified mail to the Attorney General of the United States at Washington,
District of Columbia, and
(C)
in any action attacking the validity of an order of an officer or agency of the
United States not made a party, by also sending a copy of the summons and of
the complaint by registered or certified mail to the officer or agency.
(2)
Service upon an officer, agency, or corporation of the United States shall be
effected by serving the United States in the manner prescribed by paragraph (1)
of this subdivision and by also sending a copy of the summons and of the
complaint by registered or certified mail to the officer, agency, or
corporation.
(3)
The court shall allow a reasonable time for service of process under this
subdivision for the purpose of curing the failure to serve multiple officers,
agencies, or corporations of the United States if the plaintiff has effected
service on either the United States attorney or the Attorney General of the
United States.
(j)
Service Upon Foreign, State, or Local Governments.
(1)
Service upon a foreign state or a political subdivision, agency, or
instrumentality thereof shall be effected pursuant to28 U.S.C. § 1608.
(2)
Service upon a state, municipal corporation, or other governmental organization
subject to suit, shall be effected by delivering a copy of the summons and of the
complaint to its chief executive officer or by serving the summons and
complaint in the manner prescribed by the law of that state for the service of
summons or other like process upon any such defendant.
(k)
Territorial Limits of Effective Service.
(1)
Service of a summons or filing a waiver of service is effective to establish
jurisdiction over the person of a defendant
(A)
who could be subjected to the jurisdiction of a court of general jurisdiction
in the state in which the district court is located, or
(B)
who is a party joined under Rule 14 or Rule 19 and is served at a place within
a judicial district of the United States and not more than 100 miles from the
place from which the summons issues, or
(C)
who is subject to the federal interpleader jurisdiction under28 U.S.C. § 1335,
or
(D)
when authorized by a statute of the United States.
(2)
If the exercise of jurisdiction is consistent with the Constitution and laws of
the United States, serving a summons or filing a waiver of service is also
effective, with respect to claims arising under federal law, to establish
personal jurisdiction over the person of any defendant who is not subject to
the jurisdiction of the courts of general jurisdiction of any state.
(l)
Proof of Service. If service is not waived, the person effecting service shall
make proof thereof to the court. If service is made by a person other than a
United States marshal or deputy United States marshal, the person shall make
affidavit thereof. Proof of service in a place not within any judicial district
of the United States shall, if effected under paragraph (1) of subdivision (f),
be made pursuant to the applicable treaty or convention, and shall, if effected
under paragraph (2) or (3) thereof, include a receipt signed by the addressee
or other evidence of delivery to the addressee satisfactory to the court.
Failure to make proof of service does not affect the validity of the service.
The court may allow proof of service to be amended.
(m)
Time Limit for Service. If service of the summons and complaint is not made
upon a defendant within 120 days after the filing of the complaint, the court,
upon motion or on its own initiative after notice to the plaintiff, shall
dismiss the action without prejudice as to that defendant or direct that
service be effected within a specified time; provided that if the plaintiff
shows good cause for the failure, the court shall extend the time for service
for an appropriate period. This subdivision does not apply to service in a
foreign country pursuant to subdivision (f) or (j)(1).
(n)
Seizure of Property; Service of Summons not Feasible.
(1)
If a statute of the United States so provides, the court may assert
jurisdiction over property. Notice to claimants of the property shall than be
sent in the manner provided by the statute or by service of a summons under
this rule.
(2)
Upon a showing that personal jurisdiction over a defendant cannot, in the
district where the action is brought, be obtained with reasonable efforts by
service of summons in any manner authorized by this rule, the court may assert
jurisdiction over any of the defendant’s assets found within the district by
seizing the assets under the circumstances
(a) Generally. Process other than a summons as
provided in Rule 4 or subpoena as provided in Rule 45 shall be served by a
United States marshal, a deputy United States marshal, or a person specially
appointed for that purpose, who shall make proof of service as provided in Rule
4(1). The process may be served anywhere within the territorial limits of the
state in which the district court is located, and, when authorized by a statute
of the United States, beyond the territorial limits of that state.
(b) Enforcement of Orders:
Commitment for Civil Contempt. An order of civil commitment of a person held to
be in contempt of a decree or injunction issued to enforce the laws of the
United States may be served and enforced in any district. Other orders in civil
contempt proceedings shall be served in the state in which the court issuing
the order to be enforced is located or elsewhere within the United States if
not more than 100 miles from the place at which the order to be enforced was
issued.
(a)
SERVICE: WHEN REQUIRED. Except as otherwise provided in these rules, every
order required by its terms to be served, every pleading subsequent to the
original complaint unless the court otherwise orders because of numerous
defendants, every paper re- lating to discovery required to be served upon a
party unless the court otherwise orders, every written motion other than one
which may be heard ex parte, and every written notice, appear- ance, demand,
offer of judgment, designation of record on appeal, and similar paper shall be
served upon each of the parties. No service need be made on parties in default
for failure to appear ex- cept that pleadings asserting new or additional
claims for relief against them shall be served upon them in the manner provided
for service of summons in Rule 4.
In
an action begun by seizure of property, in which no person need be or is named
as defendant, any service required to be made prior to the filing of an answer,
claim, or appearance shall be made upon the person having custody or possession
of the property at the time of its seizure.
(b)
MAKING SERVICE.
(1)
Service under Rules 5(a) and 77(d) on a party represented by an attorney is
made on the attorney unless the court orders service on the party.
(2)
Service under Rule 5(a) is made by:
(A)
Delivering a copy to the person served by: (i) handing it to the person; (ii)
leaving it at the person's office with a clerk or other person in charge, or if
no one is in charge leaving it in a conspicuous place in the office; or (iii)
if the person has no office or the office is closed, leaving it at the person's
dwelling house or usual place of abode with someone of suitable age and
discretion residing there.
(B)
Mailing a copy to the last known address of the per- son served. Service by
mail is complete on mailing.
(C)
If the person served has no known address, leaving a copy with the clerk of the
court.
[5(b)(2)](D)
Delivering a copy by any other means, including electronic means, consented to
in writing by the person served. Service by electronic means is complete on
transmission; service by other consented means is complete when the person
making service delivers the copy to the agency designated to make delivery. If
authorized by local rule, a party may make service under this subparagraph (D)
through the court's transmission facilities.
(3)
Service by electronic means under Rule 5(b)(2)(D) is not effective if the party
making service learns that the at- tempted service did not reach the person to
be served.
(c)
SAME: NUMEROUS DEFENDANTS. In any action in which there are unusually large
numbers of defendants, the court, upon mo- tion or of its own initiative, may
order that service of the plead- ings of the defendants and replies thereto
need not be made as be- tween the defendants and that any cross-claim,
counterclaim, or matter constituting an avoidance or affirmative defense
contained therein shall be deemed to be denied or avoided by all other par-
ties and that the filing of any such pleading and service thereof upon the
plaintiff constitutes due notice of it to the parties. A.8 Rule 6 FEDERAL RULES
OF CIVIL PROCEDURE copy of every such order shall be served upon the parties in
such manner and form as the court directs. (d) FILING; CERTIFICATE OF SERVICE.
All papers after the com- plaint required to be served upon a party, together
with a certifi- cate of service, must be filed with the court within a
reasonable time after service, but disclosures under Rule 26(a)(1) or (2) and the
following discovery requests and responses must not be filed until they are
used in the proceeding or the court orders filing: (i) depositions, (ii)
interrogatories, (iii) requests for documents or to permit entry upon land, and
(iv) requests for admission. (e) FILING WITH THE COURT DEFINED. The filing of
papers with the court as required by these rules shall be made by filing them
with the clerk of court, except that the judge may permit the papers to be
filed with the judge, in which event the judge shall note thereon the filing
date and forthwith transmit them to the office of the clerk. A court may by
local rule permit papers to be filed, signed, or verified by electronic means
that are consistent with technical standards, if any, that the Judicial Conference
of the United States establishes. A paper filed by electronic means in
compliance with a local rule constitutes a written paper for the purpose of
applying these rules. The clerk shall not refuse to ac- cept for filing any
paper presented for that purpose solely because it is not presented in proper
form as required by these rules or any local rules or practices. (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.)
(b)
Same: How Made. Whenever under these rules service is required or permitted to
be made upon a party represented by an attorney the service shall be made upon
the attorney unless service upon the party is ordered by the court. Service
upon the attorney or upon a party shall be made by delivering a copy to the
attorney or party or by mailing it to the attorney or party at the attorney’s
or party’s last known address or, if no address is known, by leaving it with
the clerk of the court. Delivery of a copy within this rule means: handing it
to the attorney or to the party; or leaving it at the attorney’s or party’s
office with a clerk or other person in charge thereof; or, if there is no one
in charge, leaving it in a conspicuous place therein; or, if the office is
closed or the person to be served has no office, leaving it at the person’s
dwelling house or usual place of abode with some person of suitable age and
discretion then residing therein. Service by mail is complete upon mailing.
(c) Same: Numerous Defendants. In any action in
which there are unusually large numbers of defendants, the court, upon motion
or of its own initiative, may order that service of the pleadings of the
defendants and replies thereto need not be made as between the defendants and
that any cross-claim, counterclaim, or matter constituting an avoidance or
affirmative defense contained therein shall be deemed to be denied or avoided
by all other parties and that the filing of any such pleading and service
thereof upon the plaintiff constitutes due notice of it to the parties. A copy
of every such order shall be served upon the parties in such manner and form as
the court directs.
(d)
Filing; Certificate of Service. All papers after the complaint required to be
served upon a party, together with a certificate of service, shall be filed
with the court within a reasonable time after service, but the court may on
motion of a party or on its own initiative order that depositions upon oral
examination and interrogatories, requests for documents, requests for
admission, and answers and responses thereto not be filed unless on order of
the court or for use in the proceeding.
(e)
Filing With the Court Defined. The filing of papers with the court as required
by these rules shall be made by filing them with the clerk of the court, except
that the judge may permit the papers to be filed with the judge, in which event
the judge shall note thereon the filing date and forthwith transmit them to the
office of the clerk. A court may, by local rule, permit papers to be filed by
facsimile or other electronic means if such means are authorized by and
consistent with standards established by the Judicial Conference of the United
States. The clerk shall not refuse to accept for filing any paper presented for
that purpose solely because it is not presented in proper form as required by
these rules or by any local rules or practices.
(a) Computation. In
computing any period of time prescribed or allowed by these rules, by the
local rules of any district court, by order of court, or by any applicable
statute, the day of the act, event, or default from which the designated
period of time begins to run shall not be included. The last day of
the period so computed shall be included, unless it is a Saturday, a
Sunday, or a legal holiday, or, when the act to be done is the filing of a
paper in court, a day on which weather or other conditions have made the office
of the clerk of the district court inaccessible, in which event the period runs
until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is
less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be
excluded in the computation. As used in this rule and in
Rule 77(c), “legal holiday” includes New Year’s Day, Birthday of Martin
Luther King, Jr., Washington’s Birthday, Memorial Day, Independence Day, Labor
Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other
day appointed as a holiday by the President of the Congress of the United
States, or by the state in which the district court is held.
(b)
Enlargement. When by these rules or by a notice given thereunder or by order of
court an act is required or allowed to be done at or within a specified time,
the court for cause shown may at any time in its discretion (1) with or without
motion or notice order the period enlarged if request therefor is made before
the expiration of the period originally prescribed or as extended by a previous
order, or (2) upon motion made after the expiration of the specified period
permit the act to be done where the failure to act was the result of excusable
neglect; but it may not extend the time for taking any action under Rules 50(b)
and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent
and under the conditions stated in them.
(c)
Unaffected by Expiration of Term. [Rescinded Feb. 28, 1966, eff. July 1, 1966.]
(d)
For Motions—Affidavits. A written motion, other than one which may be heard ex
parte, and notice of the hearing thereof shall be served not later than 5 days
before the time specified for the hearing, unless a different period is fixed
by these rules or by order of the court. Such an order may for cause shown be
made on ex parte application. When a motion is supported by affidavit, the
affidavit shall be served with the motion; and, except as otherwise provided in
Rule 59(c), opposing affidavits may be served not later than 1 day before the
hearing, unless the court permits them to be served at some other time.
(e)
Additional Time After Service by Mail. Whenever a party has the right or is
required to do some act or take some proceedings within a prescribed period
after the service of a notice or other paper upon the party and the notice or
paper is served upon the party by mail, 3 days shall be added to the prescribed
period.
(a) Pleadings. [1] There
shall be a complaint and an answer; a reply to a counterclaim denominated as
such; an answer to a cross-claim, if the answer contains a
cross-claim; a third-party complaint, if a person who was not an original party
is summoned under the provisions of Rule 14; and a third-party answer, if a
third-party complaint is served. [2] No other pleading shall
be allowed, except that the court may order a reply to an answer
or a third-party answer. [Rule 8(c)]
(1)
An application to the court for an order shall be by motion which, unless made
during a hearing or trial, shall be made in writing, shall state with
particularity the grounds therefor, and shall set forth the relief or order
sought. The requirement of writing is fulfilled if the motion is stated in a written
notice of the hearing of the motion.
(2)
The rules applicable to captions and other matters of form of pleadings apply
to all motions and other papers provided for by these rules.
(3)
All motions shall be signed in accordance with Rule 11.
(c) Demurrers, Pleas, etc., Abolished. Demurrers,
pleas, and exceptions for insufficiency of a pleading shall not be used.
(a)
Claims for Relief. A pleading which sets forth a claim for relief, whether
an original claim, counterclaim, cross-claim, or third-party claim, shall
contain (1) a short and plain statement
of the grounds upon which the court’s jurisdiction depends, unless the
court already has jurisdiction and the claim needs no new grounds of
jurisdiction to support it, (2) a short and plain
statement of the claim showing that the pleader is entitled to relief, and (3) a
demand for judgment for the relief the pleader seeks. Relief in the alternative
or of several different types may be demanded. [8(b)]
(b) Defenses; Form of
Denials. [1. GENERALLY] A party shall state in short and plain terms the party’s
defenses to each claim asserted and shall admit or deny the averments upon
which the adverse party relies. [FRCP 11(b)(4)] [2. LACK
OF KNOWLEDGE] If a party is without knowledge or information sufficient to
form a belief as to the truth of an averment, the party shall so state and
this has the effect of a denial. [FRCP 11(b)] [3.
DENIALS] Denials shall fairly meet the substance of the averments denied. [4. ONLY
PART] When a pleader intends in good faith to deny only a part or a
qualification of an averment, the pleader shall specify so much of it as is
true and material and shall deny only the remainder. [5.
SPECIFIC vs. GENERAL DENIALS] Unless the pleader intends in good faith to
controvert all the averments of the preceding pleading, the pleader may make
denials as specific denials of designated averments or paragraphs or may
generally deny all the averments except such designated averments or paragraphs
as the pleader expressly admits; but, when the pleader does so intend to
controvert all its averments, including averments of the grounds upon which the
court’s jurisdiction depends, the pleader may do so by general denial subject
to the obligations set forth in Rule 11.
(c) Affirmative Defenses. In
pleading to a preceding pleading, a party shall set forth affirmatively
[1] accord and satisfaction, [2] arbitration and award, [3] assumption of risk,
[4] contributory negligence, [5] discharge in bankruptcy, [6] duress, [7]
estoppel, [8] failure of consideration, [9] fraud, [10] illegality, [11] injury
by fellow servant, [12] laches, [13] license, [14] payment, [15] release, [16]
res judicata, [17] statute of frauds, [18] statute of limitations, [19] waiver,
and [20] any other matter constituting an avoidance or affirmative defense. When a
party has mistakenly designated a defense as a counterclaim or a counterclaim
as a defense, the court on terms, if justice so requires, shall treat the
pleading as if there had been a proper designation.
(d) Effect of Failure To
Deny. Averments in a pleading to which a responsive pleading is required, other
than those as to the amount of damage, are admitted when not denied in the
responsive pleading. Averments in a pleading to
which no responsive pleading is required or permitted shall be taken as denied
or avoided.
(e) Pleading to be Concise
and Direct; Consistency.
(1) Each averment of a pleading shall be simple,
concise, and direct. No technical forms of pleading or motions are required.
(2) A party may set forth two or more statements of
a claim or defense alternately or hypothetically, either in one count or
defense or in separate counts or defenses. When two or more statements are made
in the alternative and one of them if made independently would be sufficient,
the pleading is not made insufficient by the insufficiency of one or more of
the alternative statements. A party may also state as many separate claims or
defenses as the party has regardless of consistency and whether based on legal,
equitable, or maritime grounds. All statements shall be made subject to the obligations
set forth in Rule 11.
(f) Construction of
Pleadings. All pleadings shall be so construed as to do substantial justice.
(a)
Capacity. It is not necessary to aver the capacity of a party to sue or be sued
or the authority of a party to sue or be sued in a representative capacity or
the legal existence of an organized association of persons that is made a
party, except to the extent required to show the jurisdiction of the court.
When a party desires to raise an issue as to the legal existence of any party
or the capacity of any party to sue or be sued or the authority of a party to
sue or be sued in a representative capacity, the party desiring to raise the
issue shall do so by specific negative averment, which shall include such
supporting particulars as are peculiarly within the pleader’s knowledge.
(b) Fraud, Mistake,
Condition of the Mind. [1] In all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity. [2] Malice, intent, knowledge, and other
condition of mind of a person may be averred generally.
(c) Conditions Precedent.
[1] In pleading the performance or occurrence of conditions precedent, it is
sufficient to aver generally that all conditions precedent have been performed
or have occurred. [2] A denial of performance or occurrence shall be made
specifically and with particularity.
(d)
Official Document or Act. In pleading an official document or official act it
is sufficient to aver that the document was issued or the act done in
compliance with law.
(e)
Judgment. In pleading a judgment or decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient
to aver the judgment or decision without setting forth matter showing
jurisdiction to render it.
(f)
Time and Place. For the purpose of testing the sufficiency of a pleading,
averments of time and place are material and shall be considered like all other
averments of material matter.
(g)
Special Damage. When items of special damage are claimed, they shall be
specifically stated.
(h)
Admiralty and Maritime Claims. A pleading or count setting forth a claim for
relief within the admiralty and maritime jurisdiction that is also within the
jurisdiction of the district court on some other ground may contain a statement
identifying the claim as an admiralty or maritime claim for the purposes of
Rules 14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty and
Maritime Claims. If the claim is cognizable only in admiralty, it is an
admiralty or maritime claim for those purposes whether so identified or not.
The amendment of a pleading to add or withdraw an identifying statement is
governed by the principles of Rule 15. The reference in Title 28, USC §
1292(a)(3), to admiralty cases shall be construed to mean admiralty and
maritime claims within the meaning of this subdivision (h).
(a) Caption; Names of Parties. Every pleading shall contain
a caption setting forth the name of the court, the title of the action, the
file number, and a designation as in Rule 7(a). In the complaint the title of
the action shall include the names of all the parties, but in other pleadings
it is sufficient to state the name of the first party on each side with an
appropriate indication of other parties.
(b) Paragraphs; Separate Statements. All averments of claim or
defense shall be made in numbered paragraphs, the contents of each of which
shall be limited as far as practicable to a statement of a single set of
circumstances; and a paragraph may be referred to by number in all succeeding
pleadings. Each claim founded upon a separate transaction or occurrence and
each defense other than denials shall be stated in a separate count or defense
whenever a separation facilitates the clear presentation of the matters set
forth.
(c) Adoption by Reference;
Exhibits. Statements in a pleading may be adopted by reference in a different
part of the same pleading or in another pleading or in any motion. A copy of
any written instrument which is an exhibit to a pleading is a part thereof for
all purposes.
(a) Signature. Every
pleading, written motion, and other paper shall be signed by at least one
attorney of record in the attorney’s individual name, or, if the party is not
represented by an attorney, shall be signed by the party. Each paper shall
state the signer’s address and telephone number, if any. Except when otherwise
specifically provided by rule or statute, pleadings need not be verified or
accompanied by affidavit. An unsigned paper shall be stricken unless omission
of the signature is corrected promptly after being called to the attention of
attorney or party.
(b) Representations to
Court. By presenting to the court (whether by signing, filing, submitting, or
later advocating) a pleading, written motion, or other paper, an
attorney or unrepresented party is certifying that to the best of the
person’s knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances,—
(1) it is not being presented for any improper
purpose, such as to harass or to cause unnecessary delay or needless increase
in the cost of litigation; [Compare § 1927]
(2) the claims, defenses, and
other legal contentions therein are warranted by existing law or by a
nonfrivolous argument for the extension, modification, or reversal of existing
law or the establishment of new law;
(3) [1] the allegations and
other factual contentions have evidentiary support or, [2] if specifically so
identified, are likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(4) the denials of factual
contentions are warranted on the evidence or, if specifically so identified,
are reasonably based on a lack of information or belief.
(c) Sanctions. If, after
notice and a reasonable opportunity to respond, the court determines that
subdivision (b) has been violated, the court may, subject to the
conditions stated below, impose an appropriate sanction upon the attorneys,
law firms, or parties that have violated subdivision (b) or are responsible for
the violation. [(c)(1)(A)] [(c)(1)(B)] [(c)(2)]
(A)
By Motion. A motion for sanctions under this rule shall be made
separately from other motions or requests and shall describe the specific
conduct alleged to violate subdivision (b). It shall be served as provided in
Rule 5, but shall not be filed with or presented to the court unless, [Safe Harbor] within 21 days after service of
the motion (or such other period as the court may prescribe), the challenged
paper, claim, defense, contention, allegation, or denial is not withdrawn or
appropriately corrected. If warranted, the court may award to
the party prevailing on the motion the reasonable expenses and attorney’s fees
incurred in presenting or opposing the motion. Absent exceptional
circumstances, a law firm shall be held jointly responsible for violations
committed by its partners, associates, and employees.
(B) On Court’s Initiative. On its own
initiative, the court may enter an order describing the specific conduct that appears
to violate subdivision (b) and directing an attorney, law firm, or party to
show cause why it has not violated subdivision (b) with respect thereto.
[(c)(2)] [(c)(2)(A)]
(2) Nature of Sanction;
Limitations. A sanction imposed for violation of this rule shall be limited to
what is sufficient to deter repetition of such conduct or comparable conduct by
others similarly situated. Subject to the limitations
in subparagraphs (A) and (B), the sanction may consist of, or include,
[1] directives of a nonmonetary nature, [2] an order to pay a penalty into
court, or, [3] if imposed on motion and warranted for effective
deterrence, an order directing payment to the movant of some or all of the
reasonable attorneys’ fees and other expenses incurred as a direct result of
the violation.
(A) Monetary sanctions may not be
awarded against a represented party for a violation of subdivision (b)(2).
(B)
Monetary sanctions may not be awarded on the court’s initiative
unless the court issues its order to show cause before a voluntary dismissal or
settlement of the claims made by or against the party which is, or whose
attorneys are, to be sanctioned.
(3) Order. When imposing
sanctions, the court shall describe the conduct determined to constitute a
violation of this rule and explain the basis for the sanction imposed.
(d) Inapplicability to
Discovery. Subdivisions (a) through (c) of this rule do not apply to
disclosures and discovery requests, responses, objections, and motions that are
subject to the provisions of Rules 26 through 37.
(1) Unless a different time is prescribed in a
statute of the United States, a defendant shall serve an answer
(A) within 20 days after being served with the
summons and complaint, or
(B) if service of the
summons has been timely waived on request under Rule 4(d), within 60 days after
the date when the request for waiver was sent, or within 90 days after that
date if the defendant was addressed outside any judicial district of the United
States.
FRCP 12(a)(2) A party served with a
pleading stating a cross-claim against that party shall serve an answer
thereto within 20 days after being served. The plaintiff shall serve a reply to a
counterclaim in the answer within 20 days after service of the answer, or, if a
reply is ordered by the court, within 20 days after service of the order, unless
the order otherwise directs.
(3)
The United States or an officer or agency thereof shall serve an answer to the
complaint or to a cross-claim, or a reply to a counterclaim, within 60 days
after the service upon the United States attorney of the pleading in which the
claim is asserted.
(4) Unless a different time
is fixed by court order, the service of a motion permitted under this rule
alters the periods of time as follows:
(A) if the court denies the
motion or postpones its disposition until the trial on the merits, the
responsive pleading shall be served within 10 days after notice of the court’s
action; or
(B) if the court grants a
motion for a more definite statement, the responsive pleading shall be served
within 10 days after the service of the more definite statement.
(b) How Presented. Every
defense, in law or fact, to a claim for relief in any pleading, whether a
claim, counterclaim, cross-claim, or third-party claim, shall be asserted in
the responsive pleading thereto if one is required, except that the following
defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter,
(2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency
of process, (5) insufficiency of service of process, (6) failure to state a
claim upon which relief can be granted, (7) failure to join a party under Rule
19. A motion making any of these defenses shall be made before pleading if a
further pleading is permitted. [Effect of Filing] No defense or objection is waived by being
joined with one or more other defenses or objections in a responsive pleading
or motion. If a pleading sets forth a claim for relief to which
the adverse party is not required to serve a responsive pleading, the adverse
party may assert at the trial any defense in law or fact to that claim for
relief. If, on a motion asserting
the defense numbered (6) to dismiss for failure of the
pleading to state a claim upon which relief can be granted, matters
outside the pleading are presented to and not
excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided in Rule 56, and
all parties shall be given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.
(c) Motion for Judgment on
the Pleadings. After the pleadings are closed but within such time as not to
delay the trial, any party may move for judgment on the pleadings. If,
on a motion for judgment on the pleadings, matters outside the pleadings are
presented to and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in Rule 56, and all
parties shall be given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.
(d) Preliminary Hearings. The defenses specifically
enumerated (1)—(7) in subdivision (b) of this rule, whether made in a pleading
or by motion, and the motion for judgment mentioned in subdivision (c) of this
rule shall be heard and determined before trial on application of any party, unless the court orders
that the hearing and determination thereof be deferred until the trial.
(e) Motion For More Definite
Statement. If a pleading to which a responsive pleading is permitted is so
vague or ambiguous that a party cannot reasonably be required to frame a
responsive pleading, the party may move for a more definite statement before
interposing a responsive pleadings. The motion shall point out the defects
complained of and the details desired. If the motion is granted and the order
of the court is not obeyed within 10 days after notice of the order or within
such other time as the court may fix, the court may strike the pleading to
which the motion was directed or make such order as it deems just.
(f) Motion To Strike. Upon
motion made by a party before responding to a pleading or, if no responsive
pleading is permitted by these rules, upon motion made by a party within 20
days after the service of the pleading upon the party or upon the court’s own
initiative at any time, the court may order stricken from any pleading any insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.
(g) Consolidation of
Defenses in Motion. A party who makes a motion under this rule may join with it
any other motions herein provided for and then available to the party.
If a party makes a motion under this rule but omits therefrom any defense or
objection then available to the party which this rule permits to be raised by
motion, the party shall not thereafter make a motion based on the defense or
objection so omitted, except a motion as provided in subdivision (h)(2) hereof
on any of the grounds there stated. [Consolidation/No Waiver]
(h) Waiver or Preservation
of Certain Defenses
(1) A defense of lack of
jurisdiction over the person, improper venue, insufficiency of process, or
insufficiency of service of process is waived (A) if omitted from a motion in
the circumstances described in subdivision (g), or (B) if it is neither made by
motion under this rule nor included in a responsive pleading or an amendment
thereof permitted by Rule 15(a) to be made as a matter of course.
[Disfavored, Practice] (1) A defense of
lack of jurisdiction over the person [FRCP
12(b)(2)],
improper
venue [FRCP 12(b)(3)],
insufficiency of process [FRCP 12(b)(4)],
or insufficiency of service of process [FRCP
12(b)(5)]
is waived
(A) if omitted from a motion in the circumstances
described in subdivision (g),
or
(B) if it is neither made by motion under this rule
nor included in a responsive pleading or an amendment thereof permitted by Rule
15(a) to be made as a matter of course.
(2) A defense of failure to
state a claim upon which relief can be granted, a defense of failure to join a
party indispensable under Rule 19, and an objection of failure to state a legal
defense to a claim may be made in any pleading permitted or ordered under Rule
7(a), or by motion for judgment on the pleadings, or at the trial on the
merits. [Favored, Favored Practice]
(3) Whenever it appears by
suggestion of the parties or otherwise that the court lacks jurisdiction of the
subject matter [FRCP 12(b)(1)], the court shall dismiss the action.
[Most Favored]
FRCP 13(a)
Compulsory Counterclaims. A pleading shall state as a
counterclaim any claim which at the time of serving the pleading the pleader
has against any opposing party, if it arises out of the transaction
or occurrence that is the subject matter of the opposing party’s claim and does
not require for its adjudication the presence of third parties of whom the
court cannot acquire jurisdiction. But the pleader need not
state the claim if (1) at the time the action was commenced the claim was the
subject of another pending action, or (2) the opposing party brought suit upon
the claim by attachment or other process by which the court did not acquire
jurisdiction to render a personal judgment on that claim, and the pleader is
not stating any counterclaim under this Rule 13.
FRCP 13(b)
Permissive Counterclaims. A pleading may state as a counterclaim
any claim against an opposing party not arising out of the transaction
or occurrence that is the subject matter of the opposing party’s claim.
(c) Counterclaim Exceeding Opposing Claim. A
counterclaim may or may not diminish or defeat the recovery sought by the
opposing party. It may claim relief exceeding in amount or different in kind
from that sought in the pleading of the opposing party.
(d) Counterclaim Against the United States. These
rules shall not be construed to enlarge beyond the limits now fixed by law the
right to assert counterclaims or to claim credits against the United States or
an officer or agency thereof.
(e) Counterclaim Maturing or Acquired After
Pleading. A claim which either matured or was acquired by the pleader after
serving a pleading may, with the permission of the court, be presented as a
counterclaim by supplemental pleading.
(f) Omitted Counterclaim. When a pleader fails to
set up a counterclaim through oversight, inadvertence, or excusable neglect, or
when justice requires, the pleader may by leave of court set up the
counterclaim by amendment.
FRCP13(g)
Cross-Claim Against Co-Party. A pleading may state as
a cross-claim any claim by one party against a co-party arising out of
the transaction or occurrence that is the subject matter either of the
original action or of a counterclaim therein or relating to any property that
is the subject matter of the original action. Such cross-claim may include a
claim that the party against whom it is asserted is or may be liable to the
cross-claimant for all or part of a claim asserted in the action against the
cross-claimant.
FRCP
13(h) Joinder of Additional Parties. Persons other than those made
parties to the original action may be made parties to a counterclaim or
cross-claim in accordance with the provisions of Rules 19 and 20.
(i) Separate Trials; Separate Judgments. If the
court orders separate trials as provided in Rule 42(b), judgment on a
counterclaim or cross-claim may be rendered in accordance with the terms of
Rule 54(b) when the court has jurisdiction so to do, even if the claims of the
opposing party have been dismissed or otherwise disposed of.
(a) When Defendant May Bring
in Third Party. [1] At any
time after commencement of the action a defending party, as a third-party
plaintiff, may cause a summons and complaint to be served upon a person not a
party to the action who is or may be liable to the third-party plaintiff for
all or part of the plaintiff’s claim against the third-party plaintiff. [2] The third-party plaintiff
need not obtain leave to make the service if the third-party plaintiff files
the third-party complaint not later than 10 days after serving the original
answer. [3] Otherwise
the third-party plaintiff must obtain leave on motion upon notice to all
parties to the action. [4] The person served with the
summons and third-party complaint, hereinafter called the third-party
defendant, shall make any defenses to the third-party plaintiff’s
claim as provided in Rule 12 and any counterclaims against the third-party
plaintiff and cross-claims against other third-party defendants as provided in
Rule 13.
[FRCP
14(a)[5] The
third-party defendant may assert against the plaintiff any defenses which the
third-party plaintiff has to the plaintiff’s claim.
[6] The third-party defendant
may also assert any claim against the plaintiff arising out of the transaction
or occurrence that is the subject matter of the plaintiff’s claim against the
third-party plaintiff. [7] The plaintiff may assert any
claim against the third-party defendant arising out of the transaction or
occurrence that is the subject matter of the plaintiff’s claim against the
third-party plaintiff, and the third-party
defendant thereupon shall assert any defenses as provided in Rule 12 and any
counterclaims and cross-claims as provided in Rule 13. [8] Any
party may move to strike the third-party claim, or for its severance or
separate trial. [9] A
third-party defendant may proceed under this rule against any person not a
party to the action who is or may be liable to the third-party defendant for
all or part of the claim made in the action against the third-party defendant. [10] The third-party complaint,
if within the admiralty and maritime jurisdiction, may be in rem against a
vessel, cargo, or other property subject to admiralty or maritime process in
rem, in which case references in this rule to the summons include the warrant
of arrest, and references to the third-party plaintiff or defendant include,
where appropriate, the claimant of the property arrested.
(b) When Plaintiff May Bring
in Third Party. When a counterclaim is asserted against a plaintiff, the
plaintiff may cause a third party to be brought in under circumstances which
under this rule would entitle a defendant to do so.
(c)
Admiralty and Maritime Claims. When a plaintiff asserts an admiralty or
maritime claim within the meaning of Rule 9(h), the defendant or claimant, as a
third-party plaintiff, may bring in a third-party defendant who may be wholly
or partly liable, either to the plaintiff or to the third-party plaintiff, by
way of remedy over, contribution, or otherwise on account of the same
transaction, occurrence, or series of transactions or occurrences. In such a
case the third-party plaintiff may also demand judgment against the third-party
defendant in favor of the plaintiff, in which event the third-party defendant
shall make any defenses to the claim of the plaintiff as well as to that of the
third-party plaintiff in the manner provided in Rule 12 and the action shall
proceed as if the plaintiff had commenced it against the third-party defendant
as well as the third-party plaintiff.
(a) Amendments. A party may
amend the party’s pleading [1] once as a matter of
course at any time before a responsive pleading is served or, if
the pleading is one to which no responsive pleading is permitted and the
action has not been placed upon the trial calendar, the party may so amend it at
any time within 20 days after it is served. Otherwise a party may amend
the party’s pleading [2] only
by leave of court or [3] by written consent of
the adverse party; and leave shall be freely given when justice
so requires. A party shall plead in response
to an amended pleading within the time remaining for response to the
original pleading or within 10 days after service of the amended pleading, whichever
period may be the longer, unless the court otherwise orders. [FRCP 8] [FRCP
12(a)] [FRCP 20] [FRCP 13] [FRCP 13(g)]
Rule 15. Amended and Supplemental Pleadings
(a) Amendments. A party may amend the party’s
pleading once as a matter of course at any time before a responsive pleading is
served or, if the pleading is one to which no responsive pleading is permitted
and the action has not been placed upon the trial calendar, the party may so
amend it at any time within 20 days after it is served. Otherwise a party may
amend the party’s pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so requires. A
party shall plead in response to an amended pleading within the time remaining
for response to the original pleading or within 10 days after service of the
amended pleading, whichever period may be the longer, unless the court
otherwise orders.
(b) Amendments to Conform to
the Evidence [at trial]. When issues not raised by the pleadings are tried by express
or implied consent of the parties, they shall be treated in all respects as
if they had been raised in the pleadings. Such amendment of the pleadings as
may be necessary to cause them to conform to the evidence and to raise these
issues may be made upon motion of any party at any time, even after judgment;
but failure so to amend does not affect the result of the trial of these
issues. If evidence is objected to at the trial on the ground that it is not
within the issues made by the pleadings, the court may allow the pleadings to
be amended and shall do so freely when the presentation of the merits of the
action will be subserved thereby and the objecting party fails to satisfy the
court that the admission of such evidence would prejudice the party in
maintaining the party’s action or defense upon the merits. The court may
grant a continuance to enable the objecting party to meet such evidence.
(c) Relation Back of
Amendments. An amendment of a pleading relates back to the date of the original
pleading when
(1) relation back is
permitted by the law that provides the statute of limitations applicable to the
action, or
(2) the claim or defense
asserted in the amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original
pleading, or
(3) the amendment changes
the party or the naming of the party against whom a claim is asserted if the
foregoing provision (2) is satisfied and, within the period
provided by Rule 4(m) for service of the summons and complaint, the
party to be brought in by amendment (A) has received such notice of the institution
of the action that the party will not be prejudiced in maintaining a defense on
the merits, and (B) knew or should have known that, but for a mistake
concerning the identity of the proper party, the action would have been
brought against the party.